NEED TO KNOW MORE ABOUT WHAT THE RULING IS ON RELOCATING CHILDREN OUTSIDE OF SOUTH AFRICA AND HOW YOU CAN APPEAL THIS? READ MORE TO FIND OUT.
Whether due to the divorce of parents or in the case of single-parent families, there are rules when it comes to the relocation of children both within and across the borders of South Africa. This is mainly in an effort to lay restrictions that prevent abduction and child trafficking but it is also to protect the parental and child rights of the families involved.
If partners have an agreement whereby both have parental responsibilities and rights of guardianship, consent from both parties is required for the relocation of the child or children. If one parent does not consent to the move, the courts will need to be involved if one of the parents wish to move forward with the decision to move abroad.
In the case of single-parent families where only one parent has parental responsibilities and rights of guardianship or if it would be in the best interest of the child (determined by the courts) not to have contact with the uninvolved parent, this may be allowed as long as the appropriate paperwork is in place.
CHILD CUSTODY DISPUTES
Relocation dispute cases between parents have grown in recent years due to the increased number of South African citizens wishing to emigrate for a range of reasons.
A relocation dispute is when one guardian, typically the parent with whom the child resides, decides to relocate. In the case where an agreement is not in place between the two parents, a court is approached. Either the request to the court will be to grant consent for the relocation, or the request will be to prevent the relocation.
WHAT IS THE COURT’S RULING?
The Children’s Act 38 of 2008 covers everything involving children in South Africa. There is one guiding principle that underpins all provisions of this act: “in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9).
However, this is where things get a little complicated. The Children’s Act does not reference the relocation of one parent or the other, nor does it mention consent procedures. Another section, Section 18, makes it clear that if one guardian wishes to emigrate, the consent of both parents is required.
Since there is no step-by-step guidance here, the courts deal with relocation disputes depending on each unique situation. Various factors are considered, including the welfare of the child, the best interest of the child as well as the effect of the relocation on the guardian that will remain in SA. An essential factor the court will consider is whether the choice to relocate is reasonable.
Because there are no set rules to dictate a court’s ruling on the relocation of children outside of South Africa, it does run the risk of becoming a costly and litigious process.
Do you want to learn more about possibly relocating your child? We have a team of specialized law attorneys among which are expert family lawyers equipped to help you with your needs. Contact Durban Law Offices
one of the top law firms in Durban, or email us at [email protected] so that one of our lawyers may assist.
