Ex’ s consent not decisive

2016-06-22 06:00
CHRIS-MERI LILLIE

CHRIS-MERI LILLIE

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Question:

I AM recently divorced. I want to permanently relocate to Australia with my two minor children as I have obtained a wonderful work opportunity which will tremendously benefit myself and my children. However, my ex, the father of my two children, refuses to give his consent, despite the fact that the children reside with me. Do I need his consent to take them with me?

Answer:

Where both parents have guardianship of the children, as is usually the norm, notwithstanding whom the children reside with, it necessarily follows that consent will be needed from the other parent when one parent decides to relocate to another country with a minor.

However, if one parent refuses to provide consent, it does not mean that you will never be able to take your children with you should you wish to relocate to another country. Our courts have recently held that the mother with whom the children resided could relocate to another country with her minor children without the consent of their father, provided the consent of the court was obtained.

It is however important to note that it is not a given that a court will automatically provide consent where one parent refuses.

The Children’s Act only states that the consent of the non-custodial parent is required for the departure or removal of a minor from South Africa. Our courts have to consider various factors before they will grant an order allowing relocation.

The two most important factors the court will rely on is whether the decision of the parent to relocate is bona fide, reasonable and genuinely taken, and secondly, if it would be in the best interest of the child.

Furthermore, the applicant will also have to show that the child’s well-being, care and education will be better provided for in another country. This means that the court will throughout the application evaluate, weigh and balance the competing factors from both parents’ sides and also take into account the child’s wishes in appropriate cases.

The court, as the upper guardian of a child, takes upon itself a grave responsibility to decide whether to override the non-consenting parent and will only do so after the most careful consideration of all the circumstances.

From the above it is clear that in determining whether you have the right to relocate with your children without the other parent’s consent is not a cut and dry decision. Each matter will differ according to the specific situation and our courts will always carefully assess the reasonableness of the custodial parent’s decision, with the children’s best interest being paramount.

Our recommendation is to consult with a family law specialist to help you assess the merits of applying to court for an order allowing you to relocate your children to another country without your ex’s consent.

– Chris-Meri Lillie, Candidate Attorney, Phatshoane Henney Attorneys

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