Can I relocate overseas with my child and new partner?
The thought of travelling anywhere right now is little more than wishful thinking, but the pandemic won’t last forever. Italy has declared itself mask-free and low-risk, and fans lining the roads at the Tour de France are mostly not wearing masks, France having reached a level of vaccination that makes this a safe activity, at least out of doors. South Africa is in the grip of a devastating third wave, and many countries are not welcoming us at the moment. But this will change. And then there will be divorced parents wanting to relocate internationally to make a new start, especially after the upheaval COVID-19 has caused. They will want to take their children with them. And some of those parents will want to do so with a new partner. What is the legal position on international child relocation?
Consent or not?
If the child’s other parent is agreeable to the relocation, the matter is relatively straightforward. The agreement can be made an order of court. However, if this parent refuses to entertain a relocation, then the parent wishing to move has to bring a relocation application to court.
There are a number of issues to consider in child relocations. The central aspect is the right to freedom of movement. A new family has the right, or freedom, to relocate to a more favourable location. However, the best interests of the child must always be considered.
Best interests of the child
Who determines what is in the child’s best interests, and what are those interests? The rights of the child are enshrined in the Children’s Act 2005, which shifted the focus from the rights and power of the parent and brought children’s rights to the fore. The Children’s Act 2005 brought South Africa’s child care and protection law in line with the Bill of Rights and international law. It is founded on the principle that every child has the right to family care; the right to be protected from abuse, neglect, maltreatment and degradation; and the right to social services.
When it comes to relocation, the best interests of the child include the right of the child and the parent left behind to maintain a relationship, the impact of the planned relocation on the child, and the child’s view (if of an age to express a view – generally 12 or above).
If the relocation is being used merely to frustrate the other parent’s access, then it is unlikely to be permitted. Therefore, the reasons put forward for the relocation are critical.
How to start
Anyone wanting to relocate with a child from a previous relationship should begin making as many arrangements as possible early in the process. It’s a good idea to investigate schools in the destination area and, if possible, enrol the child. There may be an entrance examination to sit, and it can often be invigilated by the child’s current school here in South Africa before departure. The housing market should be investigated so the applicant parent has detailed information about potential accommodation and local amenities before making application to court for an order permitting the relocation.
It is also very important (and will influence the court’s decision) to show that the other parent is able to maintain a meaningful relationship with the child. So the details of visiting arrangements, i.e., whether the child will travel to the absent parent or vice versa, or both, and the frequency of those visits, should be included in the application. If the child is too young to travel unaccompanied, the logistics will have to be negotiated. Will the custodial parent fly with the child to the other parent, or will the latter come to fetch the child? Who will bear the cost? The court will want to know the parents have considered and discussed these details, to avoid future conflicts.
Moving on, moving abroad
As family lawyers, we have dealt with a number of child relocations. We know that, even when the parents are in agreement, it is an emotional process. After all, however carefully drafted the agreement, one parent is losing a degree of contact with their child. Modern videoconferencing platforms make the separation much easier and enable relationships to be maintained, in ways that weren’t possible a generation ago. But relocation can still be painful.
We can offer invaluable advice on how to maximise your chances of successfully obtaining an international child relocation order. But we are also committed to upholding family relationships and ensuring the best interests of the child are always paramount. We can offer suggestions on ways for the other parent to stay in close contact with the child, regardless of the distance.
At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of post-divorce international child relocation. We can help you secure a relocation order and negotiate changes to your parenting plan, if you need to relocate to another country. Contact Cape Town family attorney Simon Dippenaar on 086 099 5146 or email email@example.com to discuss your case in confidence.
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.