Contested international child relocation

The role of the social worker

When parents divorce, it’s quite common for one parent to relocate. There are many reasons for this: making a fresh start in a new city or town if the divorce has been painful or traumatic; moving closer to one’s extended family; taking up a new job offer, to better afford the cost of being single. (Divorced individuals are almost always worse off financially than they were when married; two households cost more to maintain than one.) When the move is within South Africa, there are factors to consider, and the parenting plan will need to be revised, but the courts are unlikely to get involved. Where a parent wants to relocate overseas with the child, and the other parent does not consent (contested international child relocation), the situation gets a lot more complicated.

The role of the social worker

Contested international child relocation matters are charged with emotion. Social workers play several roles, including mediation and the provision of expert reports. They conduct the investigation into the case and make a recommendation within the framework of the “child’s best interest” standard. Social workers are governed and guided by key ethical principles. The social worker will promote problem solving through mediation and will strive to avoid the adversarial system. When both the clients and the legal team understand the social worker’s role they are likely to achieve the best possible outcome.

Private vs. state-appointed social workers

A social worker may become involved in a contested relocation case via two routes. A client may opt to use a private social worker or psychologist. Attorneys generally have social workers or psychologists on their books, should a client wish to go the private route. However, the client is free to engage any appropriately qualified social worker they like. The other option is to use the social worker appointed to the case by the Office of the Family Advocate. This option is free, but generally takes a minimum of six months for completion of the investigation and report. By contrast, the time saved employing a private social worker comes at a financial cost.

Three key players

When it comes to contested international child relocation, there are three key players: the primary caregiver, the other parent, and the child. When parents can’t reach agreement, the deciding factor is always the child’s best interest. In these disputed cases, the social worker will work within the framework of the child’s best interest standard in their investigation and evaluation. They must determine risk of harm as well as protective factors on a case-by-case basis. There is a clear standard for the factors that constitute a child’s best interest and it is important that the social worker takes them all into consideration. This standard is stipulated in Section 7(1) of the Children’s Act. The social worker puts forward their recommendation within this framework.

The process 

When one parent wants to relocate internationally with their minor child and the other parent does not consent to the relocation, an expert – a social worker or private psychologist – is appointed to conduct an investigation and report. Multiple individual clinical sessions and interviews are conducted with the parents and the child and any other interested person (step-parents, grandparents, siblings, etc.). In some instances the social worker will request a biographical history. Home visits and parent and child observations also take place at each parent’s residence. If there are any other reports from school teachers or previous psychologists, they will also be taken into consideration by the appointed expert.

Considerations

Since the enactment of the Children’s Act and South Africa’s assent to the United Nations Conventions on the Rights of the Child (Article 9) — which stipulates that a child has a right to maintain personal relations and direct contact with both parents on a regular basis, unless it is contrary to the child’s best interest — South Africa has adopted a neutral approach to relocation disputes. This neutral approach means that relocation determinations should be made without any presumptions for or against relocation but should consider the relevant factors of each case on its own merits. These factors include:

• The moving parent’s reasons for relocating and the other parent’s reasons for opposing relocation
• The viability of the non-moving parent to be a primary resident parent
• The degree of realistic flexibility on the part of the moving parent, and the potential for the non-moving parent to move and follow the child
• Practical and logistical questions around the quality of contact and financial affordability of travel, etc.
• Future access schedules
• Age of the child(ren)
• Distance of the move and travel time
• Psychological stability of the relocating parent and the parenting effectiveness of both parents
• Individual resources/the child’s temperament/special development needs
• Gatekeeping and support for the other parent-child relationship
• Interpersonal conflict and domestic violence
• Recentness of marital/parental separation

Social, political, personal and economic factors are all part of the equation. The parenting style of each parent, their co-parenting methods, the attachment and bond the child has to each parent, the manner and frequency of contact post-relocation and reasons for emigrating are some of the factors experts analyse. Primarily, the desire to relocate must be bona fide and the reasons given have to be rational. The relocation might also be considered to be in the child’s best interest when the nature of the parental attachment and the quantity of caregiving support provided by one parent in relation to the other is significantly lower. Experts take into account an array of factors when conducting an investigation into whether or not an international relocation is in the child’s best interest.

You need an excellent family lawyer

At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of post-divorce relocation. We can help you if you need to relocate to another province or country. We can also help if your ex-spouse wants to relocate internationally and you want to contest the case. It’s important at all costs not to abduct the child. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. We are also in Johannesburg and Durban.

Further reading:

• The Hague Convention
• International child custody
• Moving with children post-divorce? What you need to know

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

View more posts from this author