5. Go to court if needed

If your partner or anyone with rights to your child under a objects to you moving with your child within the 30-day deadline, you have to ask the court for a court order that allows you to move.

You can do this by bringing a motion to change. A  is the name of the court process you use to ask a judge to change your court order.

The judge makes a decision based on the test. The most important factor in the best interests test is your child’s physical, emotional, and psychological safety, security, and well-being.

The judge also looks at other things related to the move, including:

  • the reasons why you want to move
  • how the move will impact your child
  • how the move impacts anyone with rights to make decisions or spend time with your child, and what you plan to do about it
  • if you followed the notice rules when telling your partner about your plans
  • if you followed previous agreements, orders, or laws in the past

The court cannot consider whether you may move without your child if the court decides your child cannot move with you.

Burden of proof

The court looks at evidence from all about why a move is or is not in your child’s best interests.

The burden of proof refers to which person must give evidence to prove their case. It depends on how much time the child spends with you and your partner. For example:

  • If your child spends substantially equal, or almost equal, time with you and your partner under an agreement or award, you have the burden of proving that moving with you would be in the best interests of your child.
  • If your child spends the vast majority, or almost all, of their time with you under an agreement or arbitration award, then your partner has the burden of proving that the move isn’t in your child’s best interests.
  • If neither applies, you and your partner both have the burden of proving whether the move is in the best interests of the child.
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