Relocation disputes are increasingly common in family law, particularly when separated parents wish to move a child to another province or country. Understanding the legal framework, parental rights, and urgent steps is essential for attorneys advising clients in these situations.
Legal Framework
South African law prioritises the best interests of the child, as set out in Section 18 of the Children’s Act 38 of 2005. Key points include:
- Parental consent: A parent with shared care cannot relocate the child without the other parent’s consent.
- Court intervention: If consent is withheld, the parent seeking relocation must file an application with the court. The process includes preparing affidavits, submitting evidence in support of the move, and serving documents on the other parent. The court may grant interim orders to prevent relocation until a decision is made, and both parties will have an opportunity to present their case before a judge issues a final order.
- International moves: Additional legal considerations apply under conventions such as the Hague Convention on International Child Abduction. Advance court approval is typically required.
- Factors court considers: The reason for the move, such as employment, education, or family support, Impact on the child’s relationship with both parents, Proposed arrangements for continued contact and communication and The child’s views if they are mature enough to express them.
Urgent Steps for Parents
If opposing the move:
- Seek immediate legal advice to protect your rights.
- Consider applying for a court interdict to prevent the child’s removal until the dispute is resolved.
- Maintain open communication to explore possible agreement or mediation.
If planning to relocate:
- Obtain written consent from the other parent if possible.
- Keep evidence supporting the reasons and benefits of the relocation for the child.
- Be prepared to apply to the family court for authorisation if consent cannot be obtained.
Practical Guidance for Attorneys:
To assist clients effectively, attorneys should:
- Assess urgency: Determine whether temporary orders or interdicts are necessary to prevent unilateral action.
- Advise on consent and court procedure: Explain the steps to apply for court approval, including preparing application documents, filing with the appropriate court, serving notice on the other parent, and attending a court hearing where both parties present their arguments.
- Prepare supporting documentation: Evidence of reasons for relocation and proposed contact schedules is crucial.
- Consider mediation: Encourage early mediation to reduce conflict and preserve the parent-child relationship.
- Draft parenting plans: Ensure arrangements cover care, contact, holidays, and communication clearly.
Strategic and Ethical Considerations
- Best interests first: Legal advice should always prioritise the child’s welfare.
- Avoid unilateral action: Moving a child without consent can have serious legal consequences.
- Transparency with clients: Ensure clients understand the legal risks, process, and likely outcomes.
- Ethical practice: Attorneys must guide clients professionally, ethically, and in accordance with statutory obligations.
Conclusion
Relocation disputes require careful, timely intervention to protect both the child’s welfare and parental rights. Attorneys play a critical role in guiding clients through consent requirements, mediation, and court applications when needed. By combining legal knowledge, practical guidance, and ethical practice, attorneys can help clients achieve fair, sustainable outcomes in post‑separation parenting matters.
For further assistance, consult an attorney at SchoemanLaw.
Anastacia Willemse | SchoemanLaw Inc
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