'My ex wants to emigrate with my kids'
What happens when your former partner wants to relocate with your kids.

The news that a former spouse wants to emigrate and take your children with them can be devastating. What are your rights in this difficult situation?

In South Africa, all legislation about the contact a divorced parent has with their child is covered in the Children’s Act of 2005. It outlines all of a parent’s responsibilities for caring for their child, having contact with them, maintenance and guardianship.

The Act is a very positive document, particularly because it has been carefully written to look at these issues from the relevant child’s point of view. In the past, a parent’s rights with their children were given the most focus. Now, the new Act has put the main emphasis on the responsibilities parents have towards their children, allowing for a parent’s rights only when they are carried out in the “best interests” of a child or children.

But these responsibilities and rights become complex when the parent that a child lives with chooses to relocate, whether that means moving to another city or emigrating overseas.

For the other parent, a new home means less contact with their child. Your immediate reaction may be to try and prevent the relocation – but is this legal?

In terms of the Act, no parent can move outside of South Africa without first getting consent from their ex-spouse. If they don’t, there are severe legal consequences. However, in return the remaining parent must be able to show that they have good reason for withholding consent if they decide not to give it.

If this becomes a deadlock, either parent can institute an application in court.

The court will use the “best interests of the child” standard to make a decision either way, taking into consideration a number of criteria. The criteria range from the nature of the relationship between the child and their parents to the parents’ attitude towards their child and how they exercise their responsibility, as well as their capacity to provide for his or her emotional and intellectual needs.

The court will also weigh up the possible impact of separation from one parent, siblings or other caregivers, and the practical difficulties and expense of maintaining contact with the remaining parent, especially if these factors could negatively affect the child’s ability to maintain a relationship with the parent that remains in South Africa.

Other issues that the court will consider are the need for the child to remain in the care of their parents and to maintain a connection with their family, culture or tradition; the child’s age, maturity and stage of development, gender, background and any other relevant statistics; and his or her physical and emotional security and intellectual, emotional, social and cultural development.

The application is also influenced by factors like whether or not the child has any disabilities or chronic illnesses or has encountered any family violence. Finally, the court will bear in mind the need for a child to be raised in a stable family environment, free from physical and psychological harm, as well as the fact that any action taken must aim to keep further legal or administrative proceedings to a minimum.

The motivations of the relocating parent will also come under the spotlight, and the court will want to make sure that appropriate plans have been put in place for the move.

The Children’s Act’s child-centred focus also gives the child themselves the chance to take part in decisions that are made about them. No court will grant an order without parents first consulting their child in a way that is appropriate for their age. All views expressed by the children are assessed in terms of their age, maturity and developmental stage.

Although courts generally find in favour of the primary caregiver, there is hope for the parent left behind: thanks to electronic communications like Skype, regular “virtual visits” are fast becoming the norm. Courts worldwide, including in South Africa, have embraced the use of technology for maintaining contact and while an online “hello” may not be the same as a hug, it can go a long way when you’re missing your child.

Gillian Lowndes is family law specialist and partner at Lowndes Dlamini Attorneys.

You can also follow Gillian’s blog

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