Where both parents have guardianship of the children, as is usually the norm, notwithstanding whom the children reside with, it necessarily follows that consent will be needed from the other parent when one parent decides to relocate to another country with a minor. However if one parent refuses to provide consent it does not mean that you will never be able to take your children with you should you wish to relocate to another country. Our courts have recently held that the mother with whom the children resided could relocate to another country with her minor children without the consent of their father, provided the consent of the court was obtained.
It is however important to note that it is not a given that a court will automatically provide consent where one parent refuses. The Children’s Act only states that the consent of the non-custodial parent is required for the departure or removal of a minor from South Africa.Therefore our courts have to consider various factors before they will grant an order allowing relocation.
The two most important factors the court will rely on is whether the decision of the parent to relocate is bona fide, reasonable and genuinely taken, and secondly, if it would be in the best interest of the child. Furthermore, the applicant will also have to show that the child’s well-being, care and education will be better provided for in another country. This means that the court will throughout the application evaluate, weigh and balance the competing factors from both parents’ sides and also take into account the child’s wishes in appropriate cases.
Examples of factors counting in favour of the parent relocating with the children:
1. Financial advantages that will better the children’s living conditions.
2. Safer living conditions for the children.
3. Better educational opportunities for the children.
4. Whether close family members in the children’s lives will relocate with them, for example grandmothers and/or grandfathers.
5. If there would be a stronger support system for the children, for example if other family members of the children already live in the country where they are relocating to.
6. Where the non-custodial parent is absent in the children’s lives.
Examples of factors counting against the parent relocating with the children:
1. If the children have a very strong relationship with the non-custodial parent.
2. If the non-custodial parent plays an important role in the children’s daily lives.
3. If the financial capacity of the parents would restrict the children to continue the relationship with the non-custodial parent.
The court, as the upper guardian of a child, takes upon itself a grave responsibility to decide whether to override the non-consenting parent and will only do so after the most careful consideration of all the circumstances.
From the above it is clear that in determining whether you have the right to relocate with your children without the other parent’s consent is not a cut and dry decision. Each matter will differ according to the specific situation and our courts will always carefully assess the reasonableness of the custodial parent’s decision, with the children’s best interest being paramount. Our recommendation is to consult with a family law specialist to help you assess the merits of applying to court for an order allowing you to relocate your children to another country without your ex’s consent.
This article first appeared on the Phatshoane Henney Attorneys September 2016 newsletter.