I have divorced my husband and I am now the primary caregiver of our minor child. I received a job offer in another country and I would really like to accept it. My ex-husband and father of my minor child won’t consent to the relocation of our minor child. Will I get permission from the court to relocate?
In the event that parents separate, the minor children will be placed in the primary care of one parent and the other parent will have rights and responsibilities in respect of the minor child but does not necessarily have to live with the child.
The issue that arises in situations as outlined above is where the primary caregiver wants to relocate to another country and the other parent won’t give consent (hereafter “the opposing party”).
In the case of relocation disputes where the primary caregiver wants to relocate, there are certain factors the court considers before granting the relocation, called the “best interests of the child standard”. These factors are listed in Section 7 of the Children’s Act and include:
The difficult part of disputes relating to relocation is that there are numerous competing rights. The Children’s Act regulates and makes provision for those rights.
The rights in dispute would include:
Where the dispute cannot be resolved between the parties through negotiation, the parties would rather opt for mediation than litigation because of the nature of the dispute (a family matter involving a minor child). Litigation can be expensive, harsh and traumatic for everyone involved.
Where the court is tasked with making a ruling in a relocation dispute, the court will consider the following:
The court will keep the best interest of the child in mind, whilst considering the abovementioned factors. The court in the A.C. v K.C. case also applied the “reasonable person’s test” and the court held that “one must think oneself into the shoes of the proverbial bonus paterfamilias or the reasonable man”. Even though the reasonable person test was used in A.C. v K.C., the best interest of the child is the most important factor.
For more information regarding family law, please contact:
Kobus Pieterse | Partner
Areas of Expertise: Litigation | Family Law | Curatorship Applications
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)