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Dispute Over Relocation Of Minor Children

Dispute Over Relocation Of Minor Children

Dispute Over Relocation Of Minor Children

As Senior Attorney at Martin Vermaak Attorneys, a Family Law Practice, I receive numerous enquiries about the rights of Parents to remove a Minor Child from the Republic of South Africa, or even just from a Province within the boundaries of South Africa.

The main questions are:
‘Who decides if a Minor Child may relocate with a Parent?’, and
‘How does a Parent obtain ‘permission’?’

The answer is:
A Relocation Application

Now I would like to break down the process and then refer to recent case law:

Process
The Parent, the Applicant, who wants to relocate and remove the Minor Child, needs to bring the Application.

This Application must be served on the other Parent, the Respondent.

The Respondent will have an opportunity to oppose the Relocation Application by filing a Notice to Oppose and an Answering Affidavit.

The Applicant must set out reasons for the relocation. These reasons must withstand the test of the Minor Child’s best interest, which is supported by Section 9 of the Children’s Act stipulating:

“in all matters concerning the care, protection and well-being of the child of the standard that the child’s best interest is of paramount importance, must be applied.”

As with any disagreement regarding a Minor Child, this relocation dispute will be referred to the Offices of the Family Advocate. More information will need to be gathered and the best interests of the Minor Child will be investigated and determined. To do this, a Family Advocate and a Family Counsellor will invite both Parents, together with the Minor Child, to visit their offices. Upon conclusion of this process, they will release a Report containing their findings and also a recommendation regarding what is in the Minor Child’s best interest.

Case Law

E v E (3718/2013) [2014] ZAKZDHC 10 (26 March 2014)
The Parties were married and got divorced in 2007. Out of the marriage relationship two children were born, namely a seventeen (17) year old boy, a thirteen (13) year old girl.

The Parties signed a Settlement Agreement whereby it was agreed that it was in the best interest of the children that Parental responsibilities and rights will be awarded to the Parties jointly.

The Applicant,(Mother)in this matter relocated to Luxemburg with the Minor Children, born from her marriage relationship with the Respondent, the biological Father. This was an Application whereby the Applicant (Mother) sought leave to remove the Minor Children from South Africa to relocate to Luxemburg, Belgium, permanently.

The Respondent (Father) opposed this Application as his rights to reasonable contact with the Minor Children would have been severely prejudiced if the Court granted the Applicant (Mother)such relief.

As the Guardian, the Respondent (Father)had to consent to the removal of the Minor Children, in terms of Section 18 (3)(c) (iii) of the Children’s Act 38 of 2005, but the Respondent (Father) refused. The Applicant (Mother) therefore brought an Application.

The Minor Children resided with the Respondent (Father) pending finalisation of the matter.

The Family Advocate investigated the matter and ultimately recommended that:

The Children were to primarily reside with the Respondent (Father).

It was recommended that the Applicant (Mother) should exercise contact as follows:

To have the Minor Children visit her for both short school holidays;
Also the Minor Children could visit her for half of December/ January holidays;
She could have Skype and telephone contact with the Minor Children at reasonable times;
The Parties could agree to further contact, by prior arrangement.

Don’t take the law into your own hands, let the professionals handle it!

Annemarie Basson
Senior Attorney