Relocating with minor children entails navigating a labyrinth of legal intricacies. This article dives into the legal implications, considerations, and challenges that accompany such a significant move. From parental rights and care agreements to international treaties and the best interests of the child. We unravel the legal framework governing these decisions, empowering families with the knowledge needed to navigate this complex terrain.
Usually, spouses or partners decide together that they want to relocate or emigrate with no issues since their minor children move with them. However, what happens if you are divorced or separated from your partner and are co-parents of minor children?
DO YOU NEED YOUR EX’S CONSENT?
If you are a co-parent of minor children in South Africa, you need the written consent of the other parent to relocate locally as well as overseas. The aforegoing applies also to a parent with primary residence who must consult with the other parent or guardian before you can relocate to another town, city or province locally or if you want to emigrate abroad. If consent is withheld unreasonably, you need to approach the High Court, as upper guardian of all minor children, to waive a co-parent’s consent to relocate with your children.
WHAT FACTORS ARE CONSIDERED BY THE COURT?
The High Court will focus on section 7 of the Children’s Act that sets out various factors when determining what is in a minor child’s best interest, including, the impact of the relocation on the child’s relationship with the other parent, the child’s relationship with other family members, the capacity of each parent to care for a child’s needs, the likely effect of the relocation on the child, the child’s age, maturity and stage of development, etc.
WHAT OTHER FACTORS ARE CONSIDERED BY THE COURT?
Other factors taken into account by the High Court when considering the relocation of minor children include, the custodian parent’s motive for wanting to relocate, the reasonableness of their decision to relocate, the custodian parent’s practical and other considerations on which the decision is based, and the extent to which he or she had properly thought through the advantages and disadvantages to the children of the proposed move.
THE ROLE OF THE FAMILY ADVOCATE
Before considering a relocation, the High Court will mandate the Office of the Family Advocate to investigate the matter and file a report with recommendations to the High Court regarding whether it will be in a minor child’s best interests to relocate with a parent.
If the High Court grants permission for the relocation, it will often also make orders regarding a child’s contact with the non-relocating parent, including the frequency and nature of the contact, and the arrangements for the child’s travel, including financial aspects such as payment of travel and accommodation and future maintenance obligations of both parents.
MEDIATION IS COMPULSORY
It is always best to attempt to reach an agreement with the other parent about the relocation of minor children rather than relying on the Court to decide. If you cannot reach an agreement, it is recommended that you seek legal advice. It is now also compulsory, in terms of the Children’s Act as well as the Rules of Court, to prove to the High Court that attempts to mediate a solution were first made, but failed, before the High Court was approached to intervene.
PRIMARY RESIDENCE
Even if you are the primary carer of the minor children and your children have valid passports, it does not mean that you are automatically permitted to take the children and leave to another town, city or province or to another country with them.
The reason for this is three-fold: A relocation affects both the children as well as the remaining parent’s contact with each other which may affect their relationship and bond. Secondly, a co-parent has automatic co-guardianship of minor children. All guardians of children must consent to a minor child’s relocation, locally or abroad. A co-guardian’s consent is also required for the issuing of a minor children’s passport. Thirdly, the best interests of the minor child test remain the paramount determining factor for the High Court and not whether it is in a parent’s best interest to relocate or not.
INTERNATIONAL CHILD LAW
If children are removed from the Republic of South Africa without a co- parent’s permission, the remaining parent can apply to the High Court for the children’s immediate return to the country since South Africa is a signatory to The Hague Convention as ratified in 1996. The Act came into operation on 1 October 1997.
The Hague Convention’s main objective is to enforce the rights of custody over minor children who have been wrongfully removed to, or kept, in a foreign country, in breach of those rights and to secure the prompt return of the children to South Africa.
CONTACT RIGHTS OF THE REMAINING PARENT
If a parent is permitted to relocate with minor children, the High Court will ensure its Order provides for contact with the children and the remaining parent as often as is practically and financially possible for both parents.
Today, with the world being a global village, contact is also made much easier with various options for daily contact such as emails, Zoom, Teams, Skype, video calling and contact via multiple social media platforms. Travel from one country to another is also possible with relative ease.
SOUTH AFRICAN CASE LAW
The Supreme Court of Appeal in Jackson v. Jackson stated that:
“…a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of so-called rights of the custodian parent…”
Generally, the courts will allow the primary residence holder to emigrate as long as the emigration is done in good faith. If a parent wants to emigrate to stop the other parent from seeing the children, then the application will likely not succeed. This is so since the Court considered that it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to immigrate in pursuance of a decision reasonably and genuinely take.
South African Courts have consistently been sensitive to the position of the remaining parent. The level of such sensitivity and the role it plays in determining the best interests of children are factors not taken lightly or dismissed by our Courts.
IN SUMMARY
The best interests of children are the first and prevailing consideration for a Court faced with the question of the relocation of minor children. Every case is however unique and determined on its own set of facts. Co- parents have a shared primary responsibility for raising their children and where the parents are separated, the child has the right, and the parents the responsibility, to make sure that contact is properly maintained.
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Disclaimer: Information provided in this article does not and is not intended to constitute legal advice. All information, content, and references contained in this article are for general informational purposes only and may not constitute he most up-to-date legal or other information.