After a yearlong custody battle between movie star Halle Berry and Canadian model Gabriel Aubry, a California court has ruled that Berry cannot permanently move 4-year-old daughter Nahla to France.
The couple split in 2010 and a heated custody battle quickly ensued. While they appeared to have arrived at an amicable resolution earlier this year, the battle was reignited by Berry's proposed move to France with the child.
For his part, Aubry has hotly contested the child's permanent removal from the United States, describing it as punitive and a violation of his custodial rights. In her request filed in the Los Angeles Family Court, Berry stated that she was concerned for her safety and that of the child since the two men who were stalking are free again.
People Magazine reports that Berry has also claimed that the move would be beneficial for Nahla as it would remove the child from the persistent glare of the American tabloid press.
While it appears that there will be no need to bid Berry "bon voyage" anytime soon, her situation raises a common predicament faced by parents who share custody of children.
In Ontario, the Supreme Court's ruling in Gordon v. Goetz governs decisions relating to mobility and custody. In that case, the Supreme Court ruled that a custodial parent who seeks to relocate with the child must demonstrate a material change in the child's needs or the parent's ability to meet those needs that was not foreseeable when the original custody/access order was made.
Once this threshold has been met and a material change established, the court's decision will turn on a consideration of whether relocation would be in keeping with the child's best interests.
The Court identified seven criteria to guide its analysis in this regard:
- The existing custody arrangement and relationship between the child and custodial parent.
- The existing access arrangement and the relationship between the child and the access parent.
- The desirability of maximizing contact between the child and both parents.
- The views of the child.
- The custodial parent's reason for moving, where it is relevant to that parent's ability to meet the needs of the child.
- The disruption to the child of a change in custody
- The disruption to the child resulting from his or her removal from family, schools and the community he or she has come to know.
Clearly, the court's criteria establish a factual and case-by-case analysis of each unique situation to ensure that the child's best interests are indeed served in the result.