Relocating Minor Children to Another Country: The Legalities
If you’re a divorced or estranged parent contemplating relocation or emigration, you may wish to have your minor child accompany you. However, this is not something that can just be done arbitrarily. There are several legal requirements that need to be satisfied in addition to the administrative travel requirements laid out by the Department of Home Affairs.
Of course, the overarching consideration is that of the child’s physical, emotional, and psychological welfare. And, whether you’re the parent relocating, or a parent who is against the child’s relocation, you will need expert advice and sound legal representation.
The Impact of Relocating Minor Children
A law firm may find itself on either side of a prospective conflict between parents who may disagree about a child’s relocation. On one hand, a case may be made in favour of relocation, while an equally persuasive case may be made for the opposing point of view.
For each unique case, there are complex and varied factors to consider. Inevitably, the attorneys concerned – and even the Court – are faced with an unenviable task. In a recent radio interview, Claire Thomson, Head of the Family Law Department at Witz Inc, pointed out that regardless of the merits of a case, the simple truth is that relocating minor children will unavoidably impact the relationship between a child and the parent who remains.
However, the Court also takes into consideration the circumstances and rights of the parent who intends to relocate, in order to arrive at a balanced and fair decision.
The Court’s Role: Testing Motive and Means
For the parent who stands to be separated from their child, there can be emotional and practical misgivings:
- The move may not be to another area within South Africa, where the child is accessible via a flight or drive. The relocation in question may well be to another country or continent, which renders the child physically inaccessible.
- If the relocation is international, the remaining parent may have reservations about the changes in culture, language, or social circles, and the child’s ability to cope.
- Added complications may arise due to time zone differences, and even electronic communication may become more difficult.
For the parent wishing to relocate with a minor child, the viewpoint and motivation may be quite different:
- The parent may have the opportunity to earn more, or to access a better, potentially more secure lifestyle and environment for the child.
- There may be better educational opportunities and other facilities that will directly benefit the child.
- There may be better long-term developmental opportunities for the child.
There is also the possibility that a parent – on either side – may be motivated by a desire to disadvantage their estranged partner or to assert their wishes regardless of the child’s well-being. Human migration is historically normal and expected, but relocating minor children is not something that can be done rashly or without proper forethought, planning, and consultation.
The Court’s role, therefore, is to test the viewpoints of both parents in order to establish underlying motives and weigh up the options based on the facts presented – with the welfare of the child as a primary consideration.
Mutual Consent is Required
Under the provisions of the Children’s Act 38 of 2005, both parents (or legal guardians) retain guardianship of a minor child, even after a separation or divorce. This stipulation may only be changed by order of the Court. This also means that unless ordered otherwise, a parent or guardian retains the right to be consulted about any significant change in the child’s circumstances, where the other parent is the primary caregiver, and to approve or contest such changes.
For a parent or guardian to emigrate with a minor child, the other parent is required to sign a consent form. This approval is also required should a parent seek to obtain a passport for a minor child, even if there appears to be no intention of relocating.
In cases where a parent opposes a child’s relocation, the parent or guardian who intends relocating may approach the Court to grant permission for such relocation.
Factors the Court May Consider
In contemplating an application for permission to relocate a minor child, the Court will examine a multitude of factors. There are conditions and standards which must be met in order to justify an order of the Court. These can include:
- Ascertaining whether relocation is in the best interests of the child.
- The decision of the relocating parent must be both bona fide and reasonable.
- It must not be made with the intention of breaking contact between the non-residence parent with the child.
- The consideration of secure attachments with the parent primarily responsible for the care of the child.
- The relationship and attachment that the non-primary residence parent has with the child.
- The support systems available to the primary residence parent in South Africa, and outside of the country.
- Employment opportunities open to the parent wishing to relocate.
- Longer-term earning potential and career advancement available to that parent.
- The maintenance contribution paid by the non-residence parent.
- Accommodation available to the relocating parent within the other country.
- The availability of medical treatment for the child.
- Educational opportunities available to the child.
- How long the relocating parent has lived in South Africa (or has lived in the country to which they intend moving).
- Peer attachments (friends) of the child in South Africa.
- The ability of the non-residence parent to exercise contact with the child in the foreign country.
- The right of the relocating parent to dignity, freedom of movement, and privacy.
- Maintenance considerations and cost factors involved in travel of the non-residence parent to the new country and of the child back to South Africa.
Implications of a Court Order
An order granted in favour of a parent wishing to relocate a minor child is not a blanket “permission slip” but will be tailored by the Court to the specific needs and circumstances of the family. An order might include specifics like:
- Dispensing of the other party’s signature and consent to travel and emigrate to another country, as well as travel from that country back and forth from South Africa and on holiday to other countries.
- Dispensing of the other party’s signature and consent to enrol the child at school and for all medical procedures the child may need in their new place of residence.
Issues like school enrolment or medical treatment, in the normal course of events, would require the consent of the other parent or guardian. However, in a case where this becomes impractical due to distance or other factors, the Court may rightfully dispose of such a requirement.
This may also be applied in certain cases where the child remains in South Africa with the parent who is a primary caregiver, while the other parent chooses to emigrate. The relocating parent may no longer practically be in a position to meaningfully contribute to everyday decisions like healthcare for the child.
Legal Counsel for Relocating Minor Children
Whether you intend relocating with your minor child or wish to oppose a co-parent or guardian who intends to do so, it’s important to ensure that the correct legal requirements are satisfied.
Contact our Family Law Department today for information and to arrange a confidential appointment.
Our knowledgeable attorneys will assist you every step of the way, with empathy and professionalism.