Relocating with your child when you are divorced

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 nature of the personal relationship between the child and the parent (both primary caregiver and opposing party);
• the attitude of the parent (opposing party) towards the child and the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the primary caregiver to provide for the needs of the child, including emotional and intellectual needs;
• the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from the other parent or any brother or sister or other child with whom the child has been living;
• the practical difficulty and expense of a child having contact with the other parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with that parent, on a regular basis;
• the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; and
• any disability that the child may have, or any chronic illness from which a child may suffer.

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:

• the primary caregiver’s right to freedom of movement and association;
• the right of the opposing parent to be in contact with the minor child; and
• the rights of the minor child, i.e. the right of the child to maintain personal relations and direct contact with both his or her parents.

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 best interests of the child (factors contained in Section 7 of the Children’s Act);
• whether a court order prohibiting the removal of the child from the court’s jurisdiction exists, in the case that the parents are divorced;
• the opposing party’s right to contact with the minor child and the meaning of the word “contact” as used in the Children’s Act (including communications via laptop and/or cell phone);
• the reason for relocation (in the best interests of the child or not);
• the stability in the child’s life (is the child happy where he or she is now and does he or she have family members nearby they visit often); and
• the relationship the child has with his or her parents. If the opposing parent has a great relationship with the minor child and sees the child very often and will now only be able to email the child, the court will have to consider this and the possible influence the absence of the opposing party would have on the minor child, if relocation is granted.

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.

Kobus Pieterse | Partner

E: k.pieterse@bissets.com

Areas of Expertise: Litigation | Family Law | Curatorship Applications

• Children’s Act 38 of 2005
• A.C. v K.C. (A 389/08) [2008] ZAGPHC 369
• Jackson v Jackson (18/2001) [2001] ZASCA 139

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)