Planning to Move Abroad with Your Child? What You Need to Know

Relocating to a new country is often an exciting adventure. However, when minor children are involved, the legal aspects can become complex and challenging. Decisions are no longer just about your personal or professional growth. It is about striking a balance between these opportunities and what is in the best interests of your child, as well as the rights of the other parent who is not relocating.

1.Best Interests of the Child: The Guiding Principle

In South African law, as with many jurisdictions, the cornerstone of decisions involving children is the “best interests of the child” principle. This principle, enshrined in both section 28(2) of the Constitution and section 9 of the Children’s Act 2005, is paramount when it comes to decisions about a child’s life, including the contentious issue of relocation.

For instance, in DJH v AH [2023] ZAECMKHC 46, it was affirmed that the child’s best interests are of paramount importance, and a proper investigation by the Family Law was ordered to assess these interests concerning relocation before the relocation could be considered by the Court.

2.The Child’s Voice Matters

As children mature, their opinions are increasingly considered in court decisions. For instance, in D v D [2022] ZAGPJHC 1009, the court gave considerable weight to the views of a 13-year-old child who wanted to relocate with her father to Croatia. If your child is old enough, their feelings and preferences about the relocation could significantly influence the decision-making process. This is consistent with the requirement in Section 10 of the Children’s Act, which guarantees children the right to participate in matters concerning them in accordance with their age, maturity and stage of development.

3.Career Opportunities and Financial Security

In several cases, such as AR v AT [2023] ZAGPJHC 380 and ADB v BAK [2023] ZAKZPHC 1, courts have recognised the validity of relocation based on better job opportunities or improved financial circumstances. However, the court will always weigh these benefits against any potential negative impacts on the child’s well-being, as well as against the interests of the parent who is left behind.

4.The Role of Family Support Systems

Relocating to a region where strong family support exists can be a persuasive factor for the courts. In WRT v MCT [2023] ZAWCHC 42, the mother’s relocation to a new location was granted primarily because the move enabled her to tap into her family support system, which was considered crucial for her child with special needs.

5.Parenting Plans and Consent

Existing parenting plans can significantly affect relocation decisions. A case in point is ADB v BAK [2023] ZAKZPHC 1, where a clause in the parenting plan required consent from the other parent before relocation. While consent was required, the court stipulated that refusal should not be unreasonable, recognising the mother’s right to pursue her career aspirations.

Conclusion

Relocating with a child is not a decision to be made lightly, nor without understanding the legal implications. The above considerations should provide some guidance for parents contemplating such a move. However, the complexity of these cases necessitates legal counsel.

If you are considering relocating with your child, we at Vermeulen Attorneys are ready to provide the guidance and support you need. With our extensive experience in Family Law, we can help navigate the legal landscape and ensure that your decisions align with the best interests of your child.