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Emigration and relocation of children

Yes, there is life after divorce.

What happens if the parent clothed with primary residency of a child decides to emigrate or permanently relocate to another part of the country? In terms of Section 18(3)(c)(iii) that custodian parent is required to get the consent of the non-custodian parent before he/she may proceed.

It goes without saying that in most cases such consent is withheld for obvious reasons, primarily because the non-custodian parent’s right to have contact with the child stands to be seriously impeded upon. If consent is unreasonably denied, the parent wishing to relocate may bring an application to the High Court in whose area of jurisdiction the child resides for permission to relocate without the other parent’s consent.

In the matter of Jackson and Jackson 2002 SA 303 (SCA) the Supreme Court of Appeal found that the best interest of the child should always be the paramount consideration when matters such as these are decided. Although the Courts will not arbitrarily impede upon a parent’s right to relocate, the decision to do so must be bona fide and reasonable.

Each matter is decided upon its own set of facts. The following factors have been found to be especially important in matters of relocation:

  • Whether the custodian parent is a foreigner and wishes to return home;

  • The employment prospects of the custodian parent;

  • The environment which the custodian has in place for the children in the foreign country, such as schools, residence, and support system;

  • The non-custodian parent’s ability to have contact with the children;

  • The wishes of the children if they are of an age and level of maturity to make such wishes known.

Although every person has the right to freedom of movement, employment and to follow each opportunity that a fresh start may provide, these rights may never usurp that which is in the best interest of a child. At Maybery Inc. we understand the intricacies that come with matters of this kind. Our specialist Family Law department is able to assist you whether you are the relocating or non-relocating party, being ever mindful of the effect of this drastic life change on your children.


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