Where both parents have guardianship over their children and one parent wants to move overseas  the consent of the other parent is needed.

If however, consent is unreasonably withheld, the parent wanting to relocate can approach either the Children’s Court or the High Court for an order granting the parent to move with the child.

It is very important to note that a decision by a court is not made without a proper investigation. The court must be satisfied that the parent’s reasons for relocating are bona fide (meaning in good faith) and it must be within the best interests of that child.

The court will prefer a well laid out plan for things before making any decisions such as the child’s well-being, education, care and among other things the child’s housing.

The court will also take the following into account before granting the relocation:

  1. Whether the financial advantages will be better for the child especially with regards to their living conditions;
  2. The safety of the child would be better;
  3. The educational opportunities for the child will be better;
  4. If there is a close family relative in that country to allow the child a healthy family life and therefore a healthy support structure; and
  5. Whether the parent who defends the relocation has been consistent within the child’s life.

Some of the factors that could go against the child relocating would be:

  1. That there is a strong relationship between the parent who doesn’t have primary residence and the child in question;
  2. How involved that non-custodial parent is in the daily life of the child; and
  3. Whether the financial ability would allow for the other parent and child to still maintain a healthy relationship.

It is also of great importance to note and fully understand that the High Court and Children’s Court are the upper guardians of children and can make the necessary decision for the child regarding what is in his/her best interest. For any legal advice regarding the relocation of a child or children’s rights in generally contact our offices today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

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