What divorced and separated parents need to know
The Legal Position on Child Relocation and Emigration
Following a divorce or separation, it is not uncommon for one parent to receive an opportunity to relocate, whether elsewhere in South Africa or abroad. While such opportunities may offer significant personal, professional and financial benefits, relocating or emigrating with a minor child involves complex legal considerations.
South African law may not permit a parent to relocate a child unilaterally where another parent or guardian holds certain parental rights and responsibilities. Whether you wish to relocate with your child or oppose a proposed relocation, obtaining experienced legal advice is essential.
At Thomson Jacobs Datnow Attorneys, our Family Law team regularly assists parents involved in child relocation and international emigration disputes, ensuring that their rights are protected while prioritising the best interests of the child.
Why Child Relocation Cases Are So Complex
Relocation disputes often arise when divorced, separated or unmarried parents disagree about a proposed relocation involving their child. These matters can be emotionally challenging and legally complex, particularly where relocation may significantly affect the child’s relationship with the other parent.
The central principle guiding every relocation matter is the best interests of the child standard. Family courts must balance competing rights and interests, including the child’s emotional, psychological and developmental needs, the child’s relationship with both parents, and the practical implications of maintaining meaningful contact after relocation.
Regardless of the reasons for relocation, there is often an unavoidable impact on the relationship between the child and the parent who stays behind. Experts who are appointed to investigate and make recommendations are, and courts are tasked with carefully evaluating all relevant circumstances to determine whether the relocation ultimately serves the child’s best interests.
| Concerns of the non-relocating parent | Reasons raised by the relocating parent |
| The move may make meaningful physical contact difficult or infrequent. | Improved employment or business opportunities. |
| The child may need to adjust to a different country, culture, language or social environment. | Greater financial or physical security for the family. |
| Time zone differences may affect regular communication. | Better educational opportunities for the child. |
| The child may lose important relationships with family, friends and support networks in South Africa. | Enhanced quality of life, medical, social or developmental resources. |
| | Access to extended family support in the destination country. |
Mutual Consent Is Generally Required
Typically, both parents retain parental responsibilities and rights in respect of a child, after divorce and under particular circumstances after separation, unless a court order provides otherwise. As a result, significant decisions affecting a child’s life generally require consultation between parents.
Where a parent wishes to emigrate or permanently relocate with a child, the consent of the other guardian is typically required. This principle also extends to obtaining a passport for a minor child and satisfying the administrative travel requirements prescribed by the Department of Home Affairs. For more information, visit the Department of Home Affairs travel information page.
What Happens If a Parent Refuses Consent?
Where one parent refuses consent for relocation, the parent seeking to move may apply to the Court for permission to be able to relocate in the absence of the other parent’s consent. The Court may grant permission for the relocation if, after considering all relevant factors, it concludes that the proposed move serves the child’s best interests.
Importantly, the Court does not simply decide whether relocation is desirable. Instead, it evaluates the evidence presented, scrutinises the motives of both parents, and considers the practical consequences of the child’s relocation.
Expert appointments
1. Typically, it is necessary for an expert to be appointed, to investigate the circumstances of the family, and to make recommendations to the court. such experts are appointed from the ranks of clinical psychologists or social workers and are typically jointly appointed or appointed by court order, and in matters where there is contention, it may be that further experts are appointed to provide corroborating or contrary recommendations and opinions.
2. Experts can be, depending on the nature of the matter and the appointment.
3. Expert reports can take time to conclude, and often it is recommended that if a parent wants to relocate, to not leave matters to the last minute to avoid the possibility of delays or even disappointment.
4. Experts recommendations are not binding and are not synonymous with a court order, but a court does consider the expert’s report and recommendations in order to make its order.
Factors Considered by the Court in Relocation Applications
1. The best interests of the child, including the child’s welfare, stability and developmental needs.
2. The relocating parent’s motives, including whether the decision is bona fide, reasonable and not intended to undermine the child’s relationship with the other parent.
3. The child’s existing relationships with each parent, including the child’s attachment to the primary caregiver and the strength of the bond with the non-relocating parent.
4. Financial and career opportunities available to the relocating parent, including long-term earning potential and financial stability.
5. The support systems available to the child and relocating parent, both in South Africa and in the proposed destination country.
6. Educational, medical and developmental opportunities available to the child.
7. The child’s social connections, including friendships, community involvement and familiarity with the current environment.
8. Whether meaningful contact with the non-relocating parent can be maintained through visits, electronic communication and holiday arrangements.
9. The practical and financial implications of travel between South Africa and the destination country.
10. The constitutional rights of the relocating parent, including dignity, privacy and freedom of movement.
What Can a Relocation Court Order Include?
1. Permission for the child to relocate internationally or under certain circumstances – locally.
2. Authorisation for travel without the consent or signature of the other parent, where appropriate.
3. Permission to obtain or renew a passport for the child without the other parent’s consent.
4. Authority to enroll the child in schools abroad.
5. Authority to make routine medical decisions in the destination country.
6. Detailed contact and visitation arrangements for the non-relocating parent.
7. Provisions dealing with travel costs, holiday contact and communication arrangements.
Obtain Experienced Legal Advice Before Relocating with a Child
Relocation and emigration disputes involving children are among the most sensitive matters encountered in family law. The outcome can have long-term consequences for both the child and the parents involved.
Whether you are seeking to relocate with your child or objecting to a proposed move, obtaining specialist legal advice at an early stage can significantly improve your ability to protect your rights and present a compelling case.
Family Law Attorneys in Johannesburg
At Thomson Jacobs Datnow Attorneys, we provide strategic legal advice and representation in matters involving child relocation applications, international emigration with children, child custody and care disputes, parenting plans, guardianship disputes, Children’s Court and High Court proceedings, and cross-border family law matters.
Our experienced family law attorneys understand the emotional and legal complexities involved and are committed to protecting your interests while ensuring that the best interests of the child remain paramount.
Contact Thomson Jacobs Datnow Attorneys today to arrange a confidential consultation with one of our experienced family law attorneys.