Relocation with Minor Children

If one parent wishes to relocate with the minor children to another province or abroad, the consent of the other parent will be required as his or her regular physical contact rights will be effected. Although contact can still be exercised virtually, physical contact during school holidays or weekends will incur extra costs (i.e. travelling or costs of flights) for either one or both parties. In the case of international relocation, this option can become very costly or even impossible.

Our courts adhere to the ‘best interests of the child’ approach as they are required to do by the Constitution and as set out in The Children’s Act No 38 of 2005.

In the court judgment and matter of LW v DB 2020 (1) SA 169 (GJ), the Gauteng High Court dealt with the issue of the best interests of minor children specifically in relocation matters. It outlined the principles as follows:

• The interests of children are the first and paramount consideration.
• Each case is to be decided on its own particular facts.
• Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained. The relationship between the parents and the children and the children’s views are to be considered.
• Where a custodial parent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. The motive must be genuine.
• The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question.

If you wish to relocate with your minor children to a different province or abroad, consider the above principles. 

Each matter is unique, so contact us to discuss your options and chances of success.