Relocating with children after divorce

Relocating with children after divorce is one of the most sensitive and complex issues in family law. Whether you are moving within South Africa or abroad, the law requires that every decision be made in the best interests of the child. At SD Law, we’ve guided parents through this process for over a decade — from negotiating parenting plans and mediation to preparing successful court applications. This guide explains the legal principles, practical steps, and emotional considerations you need to be aware of before making a move.

Legal and practical considerations of child relocation

Following a divorce, it is not unusual for one or other party to want to make a new start in a new location. When there are children involved, a parent may feel they can’t take their children away from the other parent. However, this is not entirely true. It is a sensitive and complex undertaking, but it is not legally prohibited. The courts consider first and foremost the child’s best interests and then the reason for the relocation, the parental rights and the legal obligations.

The child’s best interests

Section 7 of the Children’s Act states that the best interest of the child is the primary consideration in any decision affecting their upbringing. The courts consider the following factors when asked to rule on a relocation case:

• The child’s needs (emotionally, socially and educationally). The parent who wants to relocate must show they will provide continuity in the child’s education, an adequate amount of emotional support and a stable environment. For example, if a parent is relocating to be nearer their extended family, they can demonstrate that the child will have a supportive family unit in the new location.
• The reasons for the move. The courts consider whether the basis for the move is genuine, such as family unification or career opportunities, or whether it is designed to restrict the other parent’s contact.
• The impact on the non-relocating parent. The relocating parent must show that reasonable arrangements have been made to maintain the child’s relationship with the other parent.

Courts will typically be in favour of relocation when these requirements are met. Importantly, section 10 of the Children’s Act allows children of sufficient maturity to voice an opinion in the decisions affecting them. A “voice of the child” assessment will take place to hear the child’s preferences.

Parenting plans

Divorced or unmarried parents who do not live together are encouraged to draw up a parenting plan that outlines the care, contact and maintenance arrangements. It defines each parent’s rights and responsibilities and can prevent future disputes. The guiding principle of any parenting plan is the child’s best interests.

Parenting plans describe:

• Primary caregiver: where the child will live most of the time.
• Contact rights: the other parent’s contact with the child, e.g., visits, sleepovers, digital communication, travel arrangements, etc.
• Child maintenance: the financial contribution the non-primary caregiver makes towards the child’s needs.
• Guardianship: the rights of the parents to make the big decisions for the child such as education, medical care and certain living arrangements (such as relocation). Guardianship is typically granted to both parents regardless of who is the primary caregiver. Relocation does not affect the non-relocating parent’s guardianship rights.

When parents cannot agree on the terms of the parenting plan, the dispute may be referred to the Office of the Family Advocate or a private social worker or child psychologist for mediation.

The need for consent and appropriate behaviour

Consent from both parents is required in any relocation decision. Relocating without the consent of the other parent could be construed as parental alienation and lead to urgent court intervention, delaying court proceedings and weakening the relocating parent’s case. Where the non-relocating parent refuses to allow the relocation, the relocating parent must bring a relocation application in the High Court.

If the non-relocating parent is inconsistent in maintaining contact with the child or exhibits unsafe behaviours (such as substance abuse), any objections they raise to the move would have less influence on the court’s decision and might be mentioned by the child in the “voice of the child” assessment.

Practical steps

If you are considering relocating with your child following your divorce, there are steps you can take to avoid dispute and facilitate a smooth transition to your new home.

• Negotiate a parenting plan. Reach agreement regarding care, contact, maintenance, safeguards and solutions to the impact the move will have on care and contact for both child and the co-parent.
• Engage in mediation and negotiation. If you and your co-parent can’t agree, consult an attorney to assist in negotiations and mediation to keep the relationship amicable.
• Arrange a “voice of the child” assessment. If the child is old enough, take their views into account. They may like the idea of relocating or prefer to maintain the status quo.
• File a relocation application. If all else fails, you will need to file a relocation application at the High Court. You will need to give evidence supporting the move such as the reason for the proposed relocation, contact arrangements for the other parent and, if relevant, the child’s opinions. The best interests of the child will guide the Court’s decision.

The courts’ view

Recent cases demonstrate the courts’ reluctance to dismiss reasonable relocation proposals, particularly when the child has expressed enthusiasm for the relocation and proposals are supported by the Family Advocate, social worker or child psychologist.

Divorce attorneys SD Law can help

If your relocation is opposed, there are complex legal, emotional and practical consequences. An experienced family lawyer like SD Law can help you draft a parenting plan, engage experts if necessary, and negotiate the way forward. We can draft and file your relocation application in the High Court.

SD Law is a firm of attorneys in Johannesburg, Cape Town and Durban, who are experienced in family law. Whether you are just considering relocation after your divorce and want to discuss your options, or you are embroiled in a battle with your ex over your proposed move, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Watch: International Child Relocation | How South African Courts Decide What’s Best for the Child

Related reading:

• International Child Abduction
• Minor Child Passports & International Travel Consent in South Africa – Guardianship, Relocation & Remedies (2025 Guide)

Originally published on Divorce Attorney Johannesburg.

SD Law – Simon Dippenaar & Associates Inc.

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