When a custodian parent emigrates

2013-09-19 00:00

OFTEN after a divorce the “custodian” parent of a child wishes to move city, province or emigrate. In order to do so, the custodian parent must ask the other parent for consent to do so.

Should the other parent withhold consent to move or emigrate, which is required by s18(3)(c)(iii) of the Children’s Act, 38 of 2005, the custodian parent may apply to the court for an order that dispenses with that parent’s consent and authorises the move.

In some decisions, the courts have held that the child’s best interests must be weighed against the custodian’s right to carry on with his or her life, and the impact that the move would have on the non-custodian’s right of contact.

In Jackson vs Jackson 2002 (2) SA 303 (SCA), the Supreme Court of Appeal rejected this view and emphasized that the child’s best interests must always be the determining factor. It further stated that as a rule, a court would not lightly refuse the custodian permission to emigrate with his or her child if the decision to emigrate was bona fide and reasonable. The court explained that this is so, not because of the rights of the custodian, but because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken.

Factors the courts have considered in deciding matters of this nature are:

• decision to move is bona fide;

• have included his or her desire to return home if he of she is a foreigner;

• the presence of family members in the foreign country;

• the non-custodian’s employment opportunities; and

• his or her financial and other prospects in the foreign country.

• Claudia Garella founded Garella Attorneys which specialises in the practice of law.

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