It’s natural to want to make a fresh start after divorce. However, what happens when the primary caregiver parent or a parent who has shared residence of a minor child/ren wants to move abroad for a fresh start.
Legislation for all matters concerning children is governed by the Children’s Act 38 of 2008. The principle and foundation of all the provisions of the Children’s Act is that in all matters pertaining to the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance needs to be applied. Section 18 of the Children’s Act 38 of 2008 makes it very clear that if one parent wants to emigrate outside of South Africa the consent of both parents is needed.
The difficulty arises when one parent wants to emigrate with the minor child/ren, but the other parent does not want to give consent for the child/ren to emigrate. In this instance an application would need to be made to the High Court where the child/ren reside/s.
The High Court would need to consider why the one parent wants to emigrate and why the other parent does not want the minor chil/dren to emigrate. Once the High Court has had an opportunity to consider all the information which is before it, the High Court would then make a decision based solely on what is in the minor child/ren’s best interests.
The factors that the High Court court would look at in relation to emigration would be, if, one parent leaves the country with the minor child/ren, then the minor child/ren would have no means of physical contact with the other parent. However with international flights being readily available, and with easy access to Skype and video calling platforms the minor child/ren would still have an opportunity to exercise contact with the other parent daily and during the school holiday periods.
Where necessary, expert reports and recommendations from the Family Advocate, a Social Worker or a Psychologist for example would be considered by the High Court when making a decision. The process of obtaining expert evidence is often a lengthy one, and the cost thereof expensive.
If you are looking to emigrate with your minor child/ren it would be advisable to seek professional advice from an Attorney who specialises in Family law, especially if you believe that the other parent will not consent to your child/ren emigrating.
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Author – Kate Bailey – Hill