Relocating with minor children after divorce

Legal considerations for parents wanting to relocate with minor children after divorce

When a couple divorces, it is not uncommon for one parent to choose to relocate to another city or province – or even country. Family bonds and proximity to the extended family may become a priority, or the divorce may trigger a career move that involves relocation. If the relocating parent wishes to take the minor children with them, the courts may be involved. Even where parents share responsibility for the children’s upbringing, relocation is not impossible. The courts often allow it, but there are a number of factors a judge will consider in reaching a decision. The child’s best interests will always be the primary influence on the court’s judgment. Whether you are considering relocating after divorce with your minor child or children or your ex-spouse is proposing to move away with your child, what are the legal considerations you need to be aware of and what safeguards are in place to protect children, particularly if the relocation is international?

International travel

Before we go on to discuss permanent relocation, let’s also look at travel, as there are some common features between the two. If both parents share equal parental rights and responsibilities, a parent seeking to travel with a minor child must obtain written consent from the other parent. This aims to prevent child abduction and ensures both parents are involved in major decisions concerning the child. The Immigration Act 13 of 2002 reflects this necessity. If consent cannot be obtained from the other parent, the travelling parent may approach the High Court for consent for the minor child to travel.

Relocation – what the court considers

The paramount consideration in any relocation case is the best interests of the children. When determining whether the relocation of the child is in their best interests, the court considers recommendations from child experts, consultations with both parents and the child, and an assessment of the proposed new circumstances, such as employment, schooling and living conditions.

The court will take into account various factors, including the child’s emotional, psychological, and physical wellbeing. In some cases, the court may order psychological evaluations of the children or parents to assess the impact of the proposed relocation on the children’s wellbeing. The court will consider how contact between the children and the non-relocating parent will be maintained. This could include contact visits, communication methods, and how the associated costs will be handled.

The Children’s Act acknowledges the importance of a child’s voice in major decisions affecting their life. The child’s views and wishes must be taken into account, in accordance with their age, maturity, and development stage.

Guardian’s consent

In some cases, it may be necessary to obtain the guardian’s consent to relocate. In most cases, the parents have guardianship over the child, which is not the same as custody. Guardianship is the adult’s right and responsibility to manage a child’s interests and give consent for major events like medical treatment and travel outside of South Africa. Occasionally guardianship is granted to one parent only or to someone who is not the biological parent, though this usually happens only if the parents are unable to care for the child. Although a parent who is unable to care for their child is unlikely to try to relocate with the child, this is an important safeguard, as there have been cases of parents attempting to take children overseas unlawfully. The guardian is responsible for protecting the children’s interests, and their consent may be required for certain types of relocation.

Parents matter too

While the interests of the child come first, the courts are not insensitive to the rights and needs of the parents, including the parent left behind. A case from 2015 examined whether a proposed relocation was in the child’s best interests and whether the proposed move was bona fide and reasonable. The court considered factors such as stability, routine and the impact on the parent who is not the primary caregiver. In another case from 2018, the court considered the relocating parent’s ability to provide a suitable home and maintain regular contact between the child and the other parent. Finally, a very recent case (2023) highlighted the need to be sensitive to the child’s relationship with both parents as well as the impact of the new environment on the child and the parent’s reasons for relocation. Often a move can significantly enhance the child’s prospects for quality of life and education.

Relocation – the process

If both parents agree to the relocation and it is clearly in the children’s best interests, the process is relatively straightforward. However, if one parent opposes the move, you may need to obtain a court order permitting the relocation. The parent wishing to relocate must provide proper notice to the other parent well in advance of the proposed move. This notice should include the reasons for the relocation, the proposed new location, and a provisional updated parenting plan (see below). South African law encourages parents to use mediation to resolve disputes related to children before going to court. Mediation can help parents reach agreement regarding the relocation, potentially avoiding a court appearance. If agreement cannot be reached, the matter may proceed to court.

Parenting plan update

The parenting plan outlines how parents will exercise their rights and responsibilities regarding the children. In a high-conflict divorce, where the parties can’t reach agreement on anything, the court may require a parenting plan to be drafted. However, it is a good idea even in an amicable divorce, as it defines the roles and powers of each parent and clarifies details such as holiday arrangements. Any proposed relocation should be considered and incorporated into the parenting plan. If the court permits the relocation, the parenting plan is likely to need to be amended to accommodate the new arrangements, particularly regarding contact visits, holidays, communication, and travel.

Travel documents

If the relocation involves international travel, you will need the necessary travel documents for the children and written authorisation from the non-relocating parent, to comply with the Immigration Act 13 of 2002. If you and the child have different surnames, there may be additional documents you need for travel, such as the child’s original birth certificate.

Child support

Child support or maintenance arrangements may need to be modified if there is a significant change in living arrangements or expenses due to the relocation. This should be addressed as part of the overall plan and documented in the written parenting plan.

Seek the guidance of an expert divorce attorney

It’s important to consult with a family law attorney to navigate the legal complexities of relocating with minor children after a divorce. An attorney can give you advice and guidance tailored to your specific situation, helping you make decisions that prioritise the best interests of your children while complying with South African family law. For more information on relocating with minor children, contact Simon on 086 099 5146 or email simon@sdlaw.co.za.

Further reading:

• Contested international child relocation
• Mother wins rights to keep child in SA after marriage goes sour in UK
• The Hague Convention
• Child abduction – what if your child has been taken away without your permission?

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

View more posts from this author