RELOCATING WITH CHILDREN POST DIVORCE

It is natural to want to make a fresh start post-divorce. Inevitably, at least one parent moves from the marital home and is nominated as the primary caregiver of the children. The question is therefore raised as to what happens if the primary caregiver parent wants to move out of country? What is the legal position and what consent is required for the primary caregiver parent to obtain? Does the non-relocating parent have any rights, and can he/she stop his children from moving abroad?

In recent months, the number of families emigrating from South Africa has increased substantially. Whether this is due to attractive employment opportunities abroad, a loss of confidence in the country’s economy, the escalating crime rate, the availability of better education for children, or whatever the reason, it is posing a huge threat on divorced family units. The possibility and prospects of the primary caregiving parent relocating abroad is a real possibility especially in this day and age.

In South Africa, the primary legislation enacted for all matters concerning children is the Children’s Act, 2008. This Act sets out in detail the principle of “a child’s best interest” which is the guiding principle in dealing with children and underpins all matters concerning the care, protection and wellbeing of children. Unfortunately, the Children’s Act does not provide any guidelines or references for cases dealing with relocation. The only section that makes any mention of emigrating is Section 18 which states that if one parent wants to emigrate outside of South Africa the consent of both parents is required.

Therefore and in the absence of legislative controls, decisions coming from the courts have been decided on a case-by-case basis and it is necessary to consider case law to determine the requirements that need to be taken into account.

Our courts have, over the years, not been in agreement with the approach that should be taken when dealing with relocation applications. Different approaches have been utilised with two dominant approaches being applied, namely:

1. The pro-relocation approach, where there is a presumption in favour of the primary caregiver and the children are allowed to go with the primary care-giving parent where he or she chooses to live, unless it is necessary to restrain a relocation to prevent harm to the children; or

    

2. The neutral approach where there is neither a presumption in favour of or against relocation and a court applies a fresh inquiry into each case as it arises.

Whilst there are numerous court cases which support both these two approaches, we have no legislative guidelines to assist courts in making their relocation decisions. It is important to consider the factors that courts usually take into account.

The following is a list of such factors arising from a consideration of some past relocation decisions:

1. The paramount consideration: “the best interest of the child”
2. The purpose of relocating
3. The interest of the relocating parent
4. The interests of the non-relocating parent
5. The Relationship between the children and parents
6. The gendered nature of the roles within the post-divorce family
7. The views of the child

You will note from the above list that the court usually gives a lot of consideration to the best interests of the child, the motive for the relocation, the interests of the non-relocating parent and the views of the children before granting any application for relocation. The non-relocating parents care, and parental responsibilities are therefore still recognised however, access and visitation may be limited.

However, with the social media platform (such as skype, whatsapp calling etc) as it stands today, it is easy for the non-relocating parent to have access to the children and to maintain a meaningful relationship with the children. Many psychologists are of the opinion that quality relationship with children far exceeds quantity relationships.

One way to avoid conflict between co-holders of parental responsibilities and rights is for them to have an agreed parenting plan. Section 33(1) provides that the co-holders of parental responsibilities and rights may agree on a parenting plan that sets out how they will exercise their respective responsibilities and rights in respect of their child. The scope of what can be included in a parenting plan is virtually unlimited. This may provide security to the non-relocating parent and block periods of visitation may be provided for as set in the Van  Rooyen vs Van Rooyen case.

Therefore and in light of the above, there is an apparent gap in the law which needs to be filled in order to provide certainty and consistency in the way in which the South African courts deal with relocation disputes. Until then, we must continue to consider each case on its merits and rely on case law for guidance.