A Study of Post-Separation/Divorce Parental Relocation

2.0 Literature Review

One of the most frequently contested issues in the family courts is whether a parent may relocate with a child, moving away from the locale where both parents lived after their separation, thus affecting the child's relationship with the non-moving parent. In general, the issue that is litigated is a proposed move of a parent with a child to a new location some distance away from the non-moving parent. There is a growing international literature on the effects of relocation and litigation on children. This literature is helpful for policy makers, judges, lawyers and parents in providing a better understanding of the nature and dynamics of these cases. However, this literature reveals the complexity and fluidity of these cases rather than suggesting that simple rules can be developed for resolving these cases, and the literature can be very difficult to apply to individual cases.

In this chapter we identify themes and review the leading articles in the literature on relocation. Limitations of space (and time for carrying out this project) prevent this from being an exhaustive review of all literature on relocation; in particular we have not included discussion of some of the secondary literature that merely summarizes or critiques primary research studies. The chapter begins with a brief review of legal literature that identifies the major legal issues in relocation cases and the differing approaches to relocation in various countries. We then review some of the literature that describes the challenges in settling relocation disputes. The chapter then considers the most significant social science studies on relocation, considering first research on the effects of relocation on children and then recent studies on families involved in relocation litigation in different countries. We conclude by summarizing the key findings and trends in the literature, and commenting on the value and limitations of the existing social science literature on relocation.

2.1 The nature of relocation disputes and differing legal approaches

Parental relocation cases reflect the reality that after separation there are often very important economic and social reasons for former spouses to want to move away from the locale where they shared a residence (Bala & Harris, 2006). The increase in the number of relocation cases also reflects the gradual, but sustained, increase in the involvement of fathers in parenting in intact families, and their desire to maintain an active involvement in the lives of their children after separation (Parkinson, 2011). Technological changes have also had an interesting relationship to relocation issues, as inexpensive long distance telephone calls, email and webcams can facilitate contact between parents and children. In addition, the internet is playing a role in more individuals finding distant new partners and wanting to move to pursue these long distance relationships.

There are a number of very different legal approaches to the resolution of relocation disputes, all claiming to promote the welfare of children. Some argue that there should be a presumption in favour of allowing the custodial parent, usually the mother, to relocate, as that parent has the primary responsibility for the welfare of the child; promotion of her social or economic well-being will usually promote the welfare of the child (e.g., Wallerstein & Tanke, 1996). Some jurisdictions have adopted this approach.Footnote 1 Others argue that a presumption against moving a child is most appropriate, since children will generally benefit from stability and maintaining relationships that will inevitably be affected if the custodial parent moves with the child (Braver, Ellman & Fabricius, 2003; Warshak, 2003), and a few jurisdictions have adopted this approach.Footnote 2

Since the 1996 Supreme Court of Canada decision in Gordon v. Goertz,Footnote 3 Canadian judges have had to follow a "best interests of the child" approach that, at least in theory, requires an individualized assessment in each case, without any presumption or onus. Although far from universally accepted in the United States, the dominant trend in that country is also a best interests approach, without a presumption for or against relocation. This is also the approach in Australia and New Zealand.

The reality of relocation cases is that while the test that Canadian courts use in making the decision is intended to promote the best interests of the children involved, in individual cases judges are forced to choose between a small number of alternatives, each of which may result in the child being less well-off in some significant respect than before the litigation commenced. The options are usually stark, and all may have potential negative effects on the child (Waldron, 2005). The court is often faced with just two choices:

In some cases there are other, less common, options. A third option involves the custodial parent stating that if the court refuses permission for relocation, they will not move without the child. If this option is exercised, however, the child's welfare may still be negatively affected. In some of these cases, the child's welfare will be directly affected, as the child may, for example, be deprived of the opportunity of an increase in standard of living. This outcome may also indirectly negatively affect the child, since refusing to allow the custodial parent to move will very likely cause some unhappiness to that parent, and in some cases may contribute to clinical depression of the custodial parent (Henaghan, 2011). There is a concern that a parent in this situation may unconsciously "blame" the child for having deprived herFootnote 4 of some social or economic opportunity, and some Canadian decisions have held that it is inappropriate for a court to place weight on the response of an applicant parent to the question of what she will do if her application for relocation is denied.Footnote 5

Other less common options are that both parents move to the new location, or the custodial parent's new spouse moves to the custodial parent's location.

Judges can and sometimes do impose conditions on the parents who are permitted to relocate in order to promote the welfare of the children involved. However, whatever the outcome, there is a significant likelihood that the children will in some way be worse off after the proceedings than before. While in theory the court is making a decision based on an assessment of the "best interests" of the children, in reality the judge is often choosing the "least detrimental alternative."

It is important to appreciate that the law is only involved when the custodial parent (usually the mother) wants to move (and the other parent opposes the move). It is not uncommon for non-custodial parents (usually fathers) to move after separation, which often results in much less contact with their children, and sometimes in the virtual disappearance of these parents from the lives of their children. The unilateral decision of the non-custodial parent (usually the father) to move away often has a negative effect on the well-being of his children, but there is no legal regulation of such a move. On the other hand, if non-custodial parents want to maintain a relationship with their children, they too will be restricted in where they can live, and there is some evidence that for many separated parents their children are "anchors," keeping them in relatively close proximity to the former family home and each other (Parkinson, 2011).

2.2 The challenge of settling relocation cases

In one study that considered the difficulty in settling these cases, Parkinson and Cashmore (2009) reported that in Australia, approximately 6 percent of family law cases require a judicial disposition, while in contrast, the authors found that 59 percent of cases involving parental relocation required a determination by a judge. A New Zealand study found that 51 percent of the relocation cases required court intervention to be resolved (Taylor, Gollop, & Henaghan, 2010). Further, of the relocation cases that do settle prior to a judicial ruling, many are resolved after the litigation process is quite advanced or even after the start of the trial.

One major reason for the low rates of settlement of these cases without judicial determination is that there is typically no middle ground for reaching a compromise (Parkinson, Cashmore, & Single, 2010). In these cases, the two sides are very much at polar opposites – either the primary caregiver (usually the mother) who wishes to move will relocate or she will not, and the father will choose to move to the same location as the mother and child or he will not. When faced with such mutually exclusive options, there is frequently very little room for negotiation and compromise. Further, the appellate jurisprudence gives judges significant discretion, making it more difficult to predict the outcome if a matter does go to trial, further complicating the prospects for settlement.

Cases in which parents have separated and one parent seeks to relocate with the children pose great challenges for judges and lawyers, as well for the parents and children involved. Similar to the situation in Australia and New Zealand discussed above, in Canada these cases tend to be more bitterly contested than other family law cases, as there may be no middle ground for a compromise, and a significant portion of all family law cases that go to trial feature relocation as the central issue. Further, the test that Canadian courts use to decide whether to permit a parent to relocate with children – the "best interests of the child" – gives trial judges substantial discretion to examine and assess all of the circumstances of a case, making outcomes difficult to predict and settlements harder to negotiate (Bala & Harris, 2006; Henaghan, 2011).

2.3 Studies on the effects of relocation

While disputes involving parental relocation are among the most frequently contested cases in family law, this area has not been the subject of very much social science research. There is a growing though still small body of social science literature on the effects of relocation on both intact and separated families. However, the bulk of this research looks at the impact of relocation on family members in a general context of changes in residence rather than specifically in the area of family breakdown (Taylor et al., 2010). There have been two broad methodological approaches to the more direct study of relocation: one is retrospective and focuses on children (or young adults) who experienced parental separation and/or relocation; the other is to focus more specifically on relocation cases that are contested (or that were contested). The remainder of this chapter reviews the available social science literature on parental relocation, grouping the studies by methodological approach.

Wallerstein and Tanke (1996) published one of the first reports examining the issue of parental relocation following separation. This study was based on a 1995 amicus curiae brief filed by Wallerstein in the California relocation case of In re Marriage of Burgess. Drawing on earlier theories of attachment suggesting that children need the benefit of a strong bond to one primary parent (e.g., Goldstein, Freud, & Solnit, 1973), Wallerstein and Tanke (1996) argued that in cases where the primary parent (typically the mother) wishes to relocate with her children, there should be a presumption to allow the move, since a disruption of this primary attachment bond would be detrimental to the children involved. Wallerstein and Tanke (1996) do note, however, that in cases where both parents have been closely involved in child rearing, the issues may be less straightforward.

Wallerstein and Tanke's (1996) position has been criticized on both methodological and theoretical grounds (e.g., Pasahow, 2005; Warshak, 2000, 2003). Warshak (2000) pointed out that Wallerstein and Tanke's (1996) position advocating allowing custodial parents to relocate was based on only ten references, seven of which were published by Wallerstein's research team. Further, Wallerstein's empirical research only included six families that experienced relocation during the study and thus data directly related to relocation were very limited. In contrast, Warshak (2000) asserts that his examination of over 75 social science studies suggests that it is in a child's best interests to remain within easy access of both parents. Warshak's review was based on studies of the effects of relocation on children in both intact and divorced families, as well as studies on the effects of parents on the psychological development of children, the effects of parental absence, the impact of divorce, the effects of different custodial arrangements, and the effects of remarriage. Warshak (2000) argues that Wallerstein's position "ignores the broad consensus of professional opinion, based on a large body of evidence, that children normally develop close attachments to both parents, and that they do best when they have the opportunity to establish and maintain such attachments" (p. 85).

Warshak further argues that most of the studies that are used in support of the importance of the attachment bond between primary caregivers and children report correlational, rather than causal, relationships. As Warshak (2000) observes: "when parent and child adjustment go together, we must also consider the possibility that it is the child's adjustment that influences the parent's adjustment, or that a third factor is the causal agent linking the two factors together" (p. 88). In addition, many of the studies collect data on how well the child is doing only from the mother, which "may inflate the correlations between mother and child adjustment because of the influence of the mother's own emotional state on her perceptions of her children" (p. 88).

A contrasting school of thought from that advanced by Wallerstein and her colleagues argues that, in most families, children form close attachments with both parents, not just the primary caregiver and, in order to ameliorate the risks associated with parental relationship breakdown, it is important to maintain ongoing and frequent contact with both parents following separation (Kelly, 2000, 2007; Kelly & Lamb, 2003; Stahl, 2006; Warshak, 2000, 2003). According to this perspective, the best interests of the individual child should be the paramount consideration in decisions regarding relocation, rather than a presumption that the primary caregiver should be allowed to relocate if she desires.

One of the strongest statements of concern about the effects of relocation on young children was articulated by the American mental health professionals Joan Kelly and Michael Lamb in a 2003 article. They raised concerns about whether a child who is not able to see a parent on a regular basis in the early years of life will be able to form a proper psychological attachment to that parent. In a passage cited by some Canadian judges, they wrote:

Because attachments are more fragile in the earliest phases of formation, it is likely that younger children are more vulnerable to disruptions in attachment formation and consolidation. In assessing the potential psychological risks associated with relocation ... therefore, it is crucial to consider the child's age and phase of the attachment process when the non-moving parent has been involved in parenting, even if he or she has spent as little as a day or two each week with the child since the separation. It would be ideal if divorced parents wishing to relocate could be persuaded to wait until their children are at least 2 or 3 years old, because the children would then be better equipped with the cognitive and language skills necessary to maintain long-distance relationships, particularly when formidable distances separate them from one of their parents (p. 196).Footnote 6

They further suggest that if parents are more than an hour's drive away from one another, it will be difficult to maintain frequent contact and a strong parent-child tie. Other mental health professionals raise similar concerns about relocation of young children disrupting attachment with the non-moving parent, and being distressing for a child if it results in the rupturing of a strong, positive bond with a parent figure. However, other writers also observe that if there is not a strong attachment to the non-moving parent, relocation at a young age is less disruptive to a child as community and peer attachments are not significant in this age group (Taylor et al., 2010; Waldron, 2005).

While Kelly and Lamb raise concerns about relocation somewhat more forcefully than some other mental health professionals, most researchers emphasize that the risks of relocation for any child must be weighed against the benefits for the individual child, and most of the recent writing by mental health professionals does not advocate a legal presumption against allowing relocation, but rather advocates a "child focused" approach (Austin, 2008; Stahl, 2006). Even Kelly and Lamb (2003) emphasize that both costs and benefits exist in any potential relocation case, and these must be compared and assessed in determining how the children's best interests should be met:

When relocations offer mentally healthy, competent, and committed custodial parents improved occupational, educational, or marital opportunities ... their children are likely to benefit from the parents' enhanced psychological well-being, particularly if they are able to maintain meaningful relationships with involved and competent non-moving parents through regular contact. If the children concerned have tenuous, nonexistent, or deeply disturbed relationships with non-moving parents ... the benefits of relocation likely outweigh the costs and relocation might be desirable. (p. 202)

Norford and Medway (2002) examined the social adjustment of a group of 408 American high school students who fell into one of three groups: frequent movers (6 to 13 relocations); moderate movers (3 to 5 relocations); and non-movers. The study also collected data on the primary reason for the move, and interviewed the mothers of 67 of the students in the frequent mover group. The findings indicated that students who had moved as a result of their parents' separation or divorce participated in a significantly lower number of extracurricular activities as the number of moves they experienced increased. This effect was not significant for students who moved for reasons other than parental separation or divorce. However, they did not find a significant relationship between whether a student moved following parental relationship breakdown and negative social and emotional adjustment. Instead, it was found that maternal attitude towards relocation was related to students' psychological adjustment: students who were frequent movers and whose mothers reported a negative attitude towards relocation were more likely to suffer from depression. It should be noted, however, that this study did not account for the distance involved in the relocation, changes in socioeconomic status as a result of relationship breakdown, or the nature of the students' relationship with the non-relocating parent, and thus could not examine the effects of changes in the nature of that relationship on students' social and emotional adjustment. Further, this study did not include students who experienced one or two moves, and thus no conclusions can be drawn about the effects of low frequency mobility.

A study by Braver, Ellman and Fabricius (2003) attempted to examine the long-term effects of relocation on children's adjustment, well-being, and long term relationship with their parents by surveying college students enrolled in an introductory psychology class whose parents had divorced at some point during their childhoods. In some cases, the parents remained in close proximity to each other following the divorce; the responses of students who reported these circumstances were compared with those of young adults who reported that at least one parent had moved more than one hour's drive from their prior residence following the divorce. The final sample consisted of 602 college students whose parents had divorced at some point during their childhood. Respondents were classified into one of five possible groups: (1) neither parent moved more than one hour from the family home following the divorce; (2) the mother moved more than one hour away and the child moved with her; (3) the mother moved more than one hour away and the child remained with the father; (4) the father moved more than one hour away and the child moved with him; or (5) the father moved more than one hour away and the child remained with the mother. In cases where both parents had moved more than one hour away from the family home, respondents were asked which parent moved first.

Braver et al. (2003) found that young people who reported that one parent had moved at least one hour away following their divorce (either with or without the child) fared worse on measures of their current financial, psychological, social and emotional well-being. Specifically, compared to respondents who reported that neither parent moved more than one hour away, students whose parents moved either with or without them received less financial support from their parents, experienced higher levels of hostility in their relationships with others, reported being more distressed by their parents' divorce, rated their parents more negatively as role models and sources of social support, indicated that the nature of their parents' relationships with each other was worse, and rated themselves more negatively on measures of physical health, life satisfaction and adjustment. Based on these findings, Braver et al. (2003) argued against a presumption that custodial parents should be allowed to relocate with their children.

While the data reported by Braver et al. (2003) provide evidence of a relationship between parental relocation following divorce and negative outcomes for children, it is important to note that these findings are correlational rather than causal. It is impossible to conclude that the relocation of one parent following divorce caused the subsequent negative outcomes for the children; the possibility of the existence of other factors that are responsible for both parental relocation and negative outcomes for children must be acknowledged. As Braver et al. (2003) observe, "preexisting factors that could plausibly play this role include a low level of functioning for one or both parents, the inability of one or both parents to put the child's needs ahead of his or her own, and high levels of pre-move conflict between the parents..." (pp. 214-215). A further limitation of this research concerns the use of college students as respondents in this study. A sample of college students cannot be assumed to be representative of the population of young people who have experienced their parents' divorce. It is likely that college students, in general, represent a somewhat more affluent and better educated group than the population as a whole, and thus may include those individuals who are likely to be most resilient to adverse life events.

Austin (2008) argued that the early work of Wallerstein and her colleagues, focusing on attachment bonds between children and their caregivers, did not take account of research findings from large-scale and representative population studies that provided evidence that there can be negative effects from relocation on children, even in intact families, and that these effects are potentially exacerbated in non-intact families. According to Austin (2008), these negative effects of relocation include "school behavior problems, [lack of] academic success, [lower] school graduation...rates, [higher] teen pregnancy, [earlier] age of first sexual activity, [reduced] child well-being, and [greater] amount of idle time" (p. 140). These negative effects occurred even after controlling for family income. Austin based his review on the research literature relevant to understanding the complex issues surrounding relocation and custody decisions. He cited studies on relocation in general and the effects of mobility on children's adjustment, and examined the idea that mobility is one of many stressors following relationship breakdown. Children from separated and divorced families may be at a higher risk for adjustment and psychological difficulties and relocation represents another risk factor that may have a further negative impact on children's outcomes (Austin, 2008; Waldron, 2005). It is important to note that Austin acknowledged that the research in this area is just beginning, and he cautioned against over-interpreting the research findings that are available. He stated:

It would be unsound to use the research reviewed here as a basis for a presumption or bias against relocation of a child with a parent who aspires to relocate because of the salient social policy issues that surround relocation cases. Relocation disputes are inherently driven by the facts of the case and the particulars of the family context. (p. 147)

2.4 Studies of relocation cases

There have been a few recent studies from the United Kingdom, Australia and New Zealand that have focused on the experiences of parents and children with a history of direct involvement in relocation litigation.

A recent qualitative study conducted in the United Kingdom (Freeman, 2009) interviewed 36 parents who had been involved in relocation cases that had either been resolved by settlement by the parties or by judicial determination. Both parties were interviewed in two cases; thus, the sample consisted of 34 separate cases of which 33 involved international moves. Twenty-five of the interviews were conducted with fathers, 2 of whom wished to move with their children and 23 who were opposing proposed moves by their former partners. The 11 interviews conducted with mothers all involved cases where the mother wished to relocate with her children. In 22 of the 34 cases, the proposed relocation was allowed.

Freeman's (2009) small-scale study found that, even in cases where explicit provisions for ongoing contact with the non-residential parent were made at the time of relocation, there was frequently difficulty in exercising that contact. The costs and logistics of international travel frequently made it difficult for fathers to maintain contact, and arrangements that had been agreed upon at the time of relocation were often not honoured. Fathers whose children had relocated reported on the emotional turmoil the resulting loss of regular contact caused for themselves and their own parents. It should be noted that, in studies such as these, individuals who are satisfied with the outcome of their relocation cases may be less likely to volunteer to participate, thus calling into question the representativeness of the study sample. This potential bias is further suggested by the preponderance of fathers whose children had been allowed to relocate with their mothers, a group that is frequently dissatisfied with the outcome of their case.

Behrens, Smyth and Kaspiew (2009) conducted a retrospective qualitative study of a number of Australian parents who had been involved in relocation disputes. The study involved an analysis of all 200 contested relocation cases in the Family Court of Australia from 2002 to 2004, and in-depth interviews with a sample of 38 parents drawn from these cases (27 fathers and 11 mothers). The analysis of court decisions revealed the following findings:

According to Behrens and Smyth (2010), the major themes that emerged from the in-depth interviews with the 38 parents included:

It should be noted that the sample, and thus the findings, from the interviews conducted for this study do not include child adjustment measures. Twice as many interviewees had been involved in cases which resulted in an order allowing relocation than not allowing the move, and the majority of respondents interviewed were fathers. Thus, the majority of the sample interviewed represented fathers who had unsuccessfully opposed a relocation application, suggesting that the sample studied should not be viewed as representative of relocation disputes in general. Further, the interview sample did not include both parents in any of the cases, so in all cases the researchers were only able to obtain information regarding one side of the dispute.

A recent study from New Zealand is one of the few research projects on parental relocation to examine the perspectives of both parents and children involved in relocation disputes. Taylor et al. (2010) studied 100 New Zealand families involved in relocations disputes. As with the other studies of families involved in relocation disputes, these parents were recruited through their lawyers, so the study sample is skewed towards relocation cases involving the legal process as opposed to cases in which parents made their plans without court involvement. Approximately one-half of the families had had their relocation dispute resolved by the courts, and the others settled the case, though sometimes after court proceedings were commenced but before trial. The researchers conducted in-depth interviews with 114 parents (73 mothers and 41 fathers) and 44 children ranging in age from 7 through 18 years. Follow-up interviews were conducted with 102 of the initial sample of parents 12 to 18 months after the initial interview to determine the longer term impact of the relocation and any changes in family and contact arrangements.

The objectives of this project were:

The report of Taylor et al. (2010) presented preliminary results of the study and focused primarily on the findings of the interviews with children. Subsequent reports are planned that will examine the parental data in detail.

The interviews conducted with the children generally indicated their acceptance of and satisfaction with a move. Factors that were found to assist children in adjusting to the move included:

The New Zealand study reveals a fluid pattern of post-trial situations, including a couple of cases where mothers were permitted to relocate with their children by the courts, and did so, but then decided to return. Where mothers were not permitted by the court to move with their children, most of them did not move and reported that their children seemed reasonably content, though a number of these women planned to wait until their children were older and able to "decide for themselves" and then move, generally expecting that their children would want to move with them.

Relocation of children with their mothers often resulted in a significant weakening of relations with the father and his extended family, and in some cases contact effectively ceased. Some of the children who were seeing their fathers regularly complained of the dislocation of the travel and time away from their new communities in order to see their fathers. This study included both domestic (62 percent) and international (38 percent) moves.

A significant number of children continued to maintain contact with their fathers, and some even reported an improved relationship with their fathers as tensions between the parents were reduced by the relocation. The authors of this study (Taylor & Freeman, 2010) offer a tentative conclusion:

For the most part, the children and young people were relatively happy, well-adjusted, and satisfied with how things had worked out for them and their families. This is not to say that the relocation experience was not difficult or traumatic for some, but rather there was the sense that they had adjusted and moved on. This was particularly true of those children and young people for whom the relocation issue had occurred some years previously. (p. 141)

In the New Zealand study, the worst outcomes were for a relatively small group of cases where a mother's relocation application was denied (or abandoned by her), and she moved anyway, leaving children in the custody of a father who may have had limited involvement in their care prior to this change and quite often had a new family with other children. Although some of these reversals in custody were successful, almost half broke down in a fashion that was distressing or traumatic to the children, with children ultimately being sent by their fathers to live with their mothers.

While the New Zealand project is one of the largest scale studies of parental relocation conducted to date and a great deal of information was collected regarding the perspectives of parents and children involved in relocation disputes, a couple of limitations to the data should be noted. First, the majority of the families included in the study were recruited through private lawyers, meaning that parties with legal aid staff lawyers and self-represented individuals were not included. Thus, the sample of parents included in the study cannot be viewed as necessarily representative of the population of individuals dealing with relocation disputes. Second, parents of children who had a particularly difficult or traumatic experience surrounding the relocation tended to not consent to their children's participation in the project; therefore, the children who were included cannot be viewed as representative of all children involved in relocation cases.

A prospective longitudinal quantitative and qualitative study on relocation is currently underway at the University of Sydney in Australia (Parkinson et al., 2010). The main sample in this study includes 80 parents (40 fathers, 39 mothers, and 1 grandmother who is the primary caregiver). The sample also contains nine former couples; thus this study includes 71 discrete cases. Respondents were located through family lawyers in Australia who were asked to identify relocation cases in their practice that had been resolved within the previous six months. The researchers conducted initial interviews with the participants and follow-up interviews 18 months later. Interviews have also been conducted with 19 children involved in these cases.

Of the 40 female participants, 39 wished to relocate with the children, while one non-custodial mother disputed a proposed move by the father with the children. All 40 fathers involved in the study were disputing a proposed move by their ex-partners. When asked why they sought permission to relocate, most women interviewed provided multiple reasons. The most common reasons given were: (1) to return to their original home or move closer to extended family or friends (63 percent); (2) for lifestyle reasons (including financial) (37 percent); (3) to have a fresh start in a new location (29 percent); (4) to escape violence (11 percent); (5) for work or to start a new job (11 percent); and (6) to pursue educational opportunities for their children (8 percent). Interestingly, when fathers were asked why they thought their former partners wanted to move, the most commonly provided reasons were for lifestyle or financial reasons, to be with a new partner, or to begin a new job; moving to be closer to family and friends was mentioned less frequently by fathers than mothers. None of the fathers mentioned escaping violence as a reason for the relocation application (Parkinson et al., 2010).

Of the 71 cases included in this study, 42 were ultimately settled through a judicial disposition. The remaining 29 cases were settled by consent, although Parkinson et al. (2010) point out that the term "consent" in these cases is often misleading. In few of these cases was a mutually acceptable solution reached; a much more common outcome was that one party simply "gave up." In 21 of the 29 cases resolved without a court decision, the father reluctantly agreed to the move, rather than the mother giving up on her plans to relocate. Some of the fathers who ultimately agreed to the move stated that they decided to give up on their own wishes in favour of what they felt were the best interests of their children. Other fathers stated that they abandoned their case when they came to the realization that they were unlikely to win or could not afford to continue with the litigation. In seven cases, the matter was settled by the mothers giving up their plans to move with the children; in two of these cases, the mother did move but left the children with their fathers.

2.5 Summary: The challenges of application of research and prediction

It is important for all of those who are concerned about relocation cases to be familiar with the growing body of social science literature on this subject, but it is also necessary to be aware of its limitations and of the challenges of applying it to individual cases.

Research on relocation cases in the courts indicates that these are difficult cases to settle and more likely to require judicial resolution than other types of custody, access and child-related disputes between parents (Parkinson et al., 2010; Taylor et al., 2010). This also can be very expensive litigation; many parents are financially unable to take these cases to trial, and reach agreements that they would rather not have made in order to avoid taking the case to court.

Some mental health professionals in the 1990s focused on the importance of the child's relationship with the primary caregiver and argued in favour of a presumptive right of primary caregivers to move with their children (Wallerstein & Tanke, 1996). However, most researchers now accept that post-separation relocation is a "risk factor" for children, and recognize that on certain measures, in general, children who relocate after separation have more difficulties than children who do not relocate (Austin, 2008; Kelly & Lamb, 2003; Kelly, 2007; Stahl, 2006; Waldron, 2005). There is, however, no research to establish that negative outcomes are caused by the relocation, or that the children who in fact relocated would have been better off had they not relocated. There are many factors involved in relocation after separation, and there are often economic and social factors that make the populations who relocate different from those who do not relocate. The studies of children and young adults who relocated did not assess whether there was an option of not relocating, let alone attempt to determine what the effects of not relocating would have been.

Further, the existing research suggests that most children who relocate after separation adjust reasonably well and do not appear to suffer significant long-term negative effects (Taylor et al, 2010). Some children involved in relocation litigation suffer long-term negative effects, whether they move or they stay. One of the only longitudinal studies of relocation suggests that the worst outcomes may be for children who do not move with the primary care parent but are left in their original place of residence in the care of the parent who did not previously have primary care (Taylor et al., 2010).

Mental health professionals recognize that any decision about a child is affected by developmental factors, and recommend that, if relocation occurs, plans for continuing contact with the "left behind" parent take account of the child's age and developmental needs. For younger children, relocation may disrupt psychological attachment with a parent who will not be seen on a frequent basis, but the transition to a new home will be easier because the child will not have strong peer, school or community ties (Taylor et al., 2010). For older children, disruption of peer, community and school relationships as a result of relocation are important factors to consider.

Relationships with the "left behind" parent will be affected by relocation, though the nature and extent of the effect will depend on many factors, including the age of the child, the distances involved and resources of the parents for travel, as well as the nature of the pre-existing relationship between that parent and the child. If a strong, positive relationship with the non-moving parent is disrupted, this will affect the child; if the non-moving parent has had little or no involvement with the child before the move, the child may be little affected by relocation. If the child had a poor relationship with that parent, for example because of issues of violence or abuse, the child may benefit from seeing that parent less (or not all) because of the move.

Significant contact with the non-moving parent is likely to be disrupted by relocation and the relationship may possibly wither away if there is relocation and there has been a high conflict parental separation, or there are family violence, parental mental health or substance abuse issues (Behrens & Smyth, 2010; Taylor et al., 2010). The cost of travel relative to parental means is also a significant factor resulting in a loss of contact with the non-moving parent.

Most recent writing by mental health researchers recognizes that there are both potential risks and potential benefits for children from relocation, and consequently recommends case-by-case weighing of risks and benefits (Austin, 2008; Kelly & Lamb, 2003; Kelly, 2007; Stahl, 2006; Waldron, 2005). These authors also recognize the importance of canvassing the perspectives and views of older children in making relocation decisions.

As discussed in this chapter, there are important methodological limitations to all of the existing research on relocation and its effects on children due to the small, and often unrepresentative, populations being studied. Further, for ethical, practical and methodological reasons, it is has never been possible to do randomized control trial research on the outcomes for a group of children who were relocated compared to the outcomes for a similar group of children who were not relocated. There are challenges in applying the research to any individual case because of the complexity of interacting factors, and the inherent unpredictability of the relocation (or non-relocation) on children and their parents.

Almost a decade ago, psychologist Richard Warshak, one of the most prominent American writers on the effects of separation on children, acknowledged:

Relocation brings potential benefits to children along with the hazards.... Weighing and integrating all of these factors is a tall order. Even decisions that appear at first glance to be easy may carry unexpected consequences. (Warshak, 2003, p. 381)

A recent article on relocation by a leading New Zealand legal scholar, Mark Henaghan, commented on the limits of social science research in this area:

Social science can report the experiences of children and parents after separation, and measure how children cope. The difficulty lies in deciding which variables should be given weight in determining outcomes for each particular child. The variables range from the child's own particular internal resources, to the physical and economic surroundings they live in, through to their relationships with parents, peers and others in their life. Determining which one, or combination of these variables, leads to which outcomes is not a precise task. We simply cannot know how life would have been different if a child had, or had not, relocated with a parent. (Henaghan, 2011, p. 235)

The difficulty of applying existing social science research to individual cases led this New Zealand scholar to propose the adoption of a framework for presumptive decision-making. In Chapter 5.0, we discuss the issue of whether there is value to presumptive frameworks for relocation decision-making.Footnote 7