What Is a Relocation Dispute?
Relocation becomes a family-law issue when a parent's proposed move with a child significantly affects the child's circumstances or another person's exercise of parental responsibilities and rights.
A move can affect schooling, friendships, extended family, healthcare, culture, routine and, importantly, the child's relationship and contact with the parent who remains behind.
The greater the distance involved, the more carefully practical arrangements for maintaining the child's relationships may need to be considered.
Domestic and International Relocation Are Not the Same
It is important to distinguish between moving a child somewhere else within South Africa and removing a child permanently from South Africa.
Domestic Relocation
The Children’s Act does not impose a blanket rule that every move between towns or provinces requires the other parent's consent. The parties' parental rights, existing court orders or parenting plans, and the effect of the decision on the child and other parent must be considered.
International Relocation
Removal of a child from South Africa engages specific guardianship provisions. Where the required guardian consent is withheld, court authorisation may be required.
A divorce order, settlement agreement or parenting plan may contain specific provisions regulating relocation. Do not assume that a domestic move can be made unilaterally without first checking the legal arrangements already governing the child.
What If a Parent Wants to Move Overseas?
International relocation requires particular care. In terms of the Children’s Act, the consent of all persons who hold guardianship of a child is generally required for the child's removal or departure from the Republic, unless a competent court orders otherwise.
Where the necessary consent is refused, the parent wishing to relocate may therefore need to approach the court for appropriate relief.
The fact that another guardian refuses consent does not automatically end the proposed international relocation. A court can be approached to determine the dispute and decide whether the proposed relocation should be authorised.
What About Relocation Within South Africa?
Domestic relocation is more nuanced. A move from Pretoria to Cape Town, for example, may profoundly affect a child's schooling, routine and relationship with the other parent even though the child remains within South Africa.
Where co-holders of parental responsibilities and rights are involved, the Children’s Act requires due consideration to be given to the views and wishes of another co-holder when a decision is likely to significantly affect that person's exercise of parental responsibilities and rights.
The views of the child must also be considered where the decision is likely to significantly affect the child, having regard to the child's age, maturity and stage of development.
A major relocation can fundamentally alter the practical parenting arrangement. Raise the proposed move early, provide meaningful information and properly consider the consequences for the child and the other parent.
How Is a Disputed Relocation Dealt With?
The precise procedure depends on the facts, existing orders and whether the relocation is domestic or international. Where agreement cannot be reached, court proceedings may become necessary.
Obtain Legal Advice Early
The existing parenting plan, divorce order, parental responsibilities and rights and proposed destination should be considered before irreversible arrangements are made.
Provide the Relocation Proposal
The other parent should be given meaningful information about the proposed move, the reasons for it and the arrangements proposed for the child.
Attempt Agreement Where Appropriate
Negotiation or mediation may assist the parents in resolving the dispute or narrowing the issues before litigation becomes necessary.
Prepare the Court Application
If the dispute cannot be resolved, an application may be brought asking the court to determine the proposed relocation and any related parenting arrangements.
Investigation and Evidence
Depending on the matter, the Family Advocate and other professionals may investigate the child's circumstances and provide relevant evidence or recommendations.
Court Determination
If agreement remains impossible, the court weighs the evidence and determines the outcome with the child's best interests as the paramount consideration.
What Does the Court Consider?
There is no single factor that automatically determines a relocation application. Courts must evaluate the particular circumstances of the child and family and balance the competing considerations.
Why Is the Move Proposed?
Employment, family support, remarriage, financial circumstances, safety, education and other genuine reasons may be relevant.
Impact on the Child
The court considers the effect of the move on the child's stability, development, emotional security and daily life.
The Other Parent
The likely effect of relocation on the child's relationship and ongoing contact with the parent who remains behind is an important consideration.
Education
Current and proposed schools, educational opportunities and disruption to the child's education may be relevant.
Family & Social Connections
Extended family, friendships, community ties, language and cultural considerations may form part of the enquiry.
The Relocation Plan
Housing, employment, finances, schooling, healthcare, travel and contact arrangements should be realistically considered.
Does the Reason for Relocation Matter?
Yes. Courts consider whether the decision to relocate is genuine, reasonable and properly thought through.
A parent seeking relocation should be able to explain the real advantages and disadvantages of the proposed move, including its impact on the child and the child's relationship with the other parent.
A strong relocation case generally requires more than saying that life will be better elsewhere. The proposal should be practical, bona fide and centred on the child's actual circumstances.
Does the Child Get a Say?
A child's views can be relevant in relocation proceedings. The Children’s Act recognises the child's right to participate in matters concerning them where the child is of an appropriate age, maturity and stage of development.
This does not mean that the child simply chooses which parent or location they prefer. The child's views form part of the broader best-interests enquiry and must be considered in context.
Parents should be cautious about placing a child in the position of having to choose between them. The court determines the dispute. The child's views are important, but the child should not be made responsible for the outcome.
What Happens to Contact After Relocation?
Relocation does not automatically end the relationship between the child and the parent who remains behind. A workable contact plan is often an important part of a relocation proposal.
Greater distance may mean that frequent short visits become less practical and must be replaced by longer periods during school holidays together with regular remote contact.
Extended Contact
Longer school-holiday periods may help preserve meaningful in-person time where ordinary weekend contact is no longer practical.
Video & Telephone Contact
Regular video calls and other appropriate communication can supplement physical contact between visits.
Transport Arrangements
The proposal should address who will arrange and pay for flights, transport and other travel associated with contact.
Clear Schedules
School holidays, birthdays, special occasions and travel arrangements should be addressed as clearly as possible.
What Is the Role of the Family Advocate?
The Office of the Family Advocate may play an important role in relocation disputes involving children.
Depending on the circumstances and court process, an investigation may be conducted into the child's circumstances, parental arrangements and the effect of the proposed relocation, followed by recommendations to the court.
Relocation cases frequently involve two parents who genuinely hold very different views about what is best for their child. An independent investigation can assist the court in evaluating the child's circumstances beyond the competing positions of the parents.
Are Expert Reports Always Required?
Not every relocation dispute requires the same type or level of expert evidence. The need for expert involvement depends on the facts, the child's circumstances and the issues in dispute.
In appropriate matters, evidence from psychologists, social workers, educational professionals or other experts may assist with specific questions relevant to the child's welfare.
Expert evidence must assist the court with a genuine issue. The quality, independence and relevance of an assessment matter more than simply accumulating reports.
What Evidence Can Strengthen a Relocation Application?
A relocation application should present a coherent and realistic picture of what the child's life will look like if the move is permitted.
Work & Income
Employment opportunities, confirmed offers and financial implications may support the reasons advanced for relocation.
Where the Child Will Live
Information about suitable accommodation and the proposed living environment can demonstrate practical planning.
School Arrangements
Evidence concerning proposed schooling, availability and educational opportunities may be relevant.
Family & Support Network
The availability of family, childcare and other meaningful support structures can form part of the overall picture.
Detailed Parenting Proposal
A realistic plan for maintaining the child's relationship with the other parent can be particularly important.
Individual Needs
Medical, emotional, developmental, cultural and other individual needs should be properly addressed.
What If You Oppose the Relocation?
A parent opposing relocation should likewise focus on the child's interests rather than simply objecting to the other parent's decision.
Relevant concerns may include the effect on the parent-child relationship, schooling, emotional stability, family support, the practicality of the proposed contact arrangements or weaknesses in the relocation plan.
The court is not deciding whether one parent likes the other's decision. A meaningful opposition should explain why the proposed relocation would not serve the child's best interests or why another arrangement would better do so.
Can You Relocate First and Deal With the Dispute Later?
Making a significant move while a relocation dispute remains unresolved can create serious legal and practical complications. This is particularly so where an existing court order or parenting plan regulates relocation or where international removal requires guardian consent.
A parent considering relocation should obtain advice before changing the child's residence, school or country of residence.
Courts can be asked to intervene urgently where a child is moved in breach of an existing arrangement or while a genuine relocation dispute remains unresolved. Deal with the legal position before making irreversible arrangements wherever possible.
Why Stability and Continuity Matter
Relocation inevitably involves change. Courts may therefore consider the child's existing stability, attachments, schooling, social environment and the effect of changing those circumstances.
At the same time, stability does not mean that a child can never relocate. The court must balance continuity against the potential benefits and disadvantages of the proposed move.
There is no automatic rule that a primary caregiver will always be permitted to relocate, nor an automatic rule that relocation must be refused because contact will become more difficult. The competing considerations must be weighed in the circumstances of the individual child.
Considering Relocation? Plan Before You Move
A relocation application is considerably easier to assess when the practical details have been investigated before litigation begins.
Check Your Existing Order
Review any divorce order, settlement agreement or parenting plan regulating residence, relocation or contact.
Research the Destination
Consider housing, schooling, employment, healthcare, childcare and the support available at the proposed destination.
Prepare a Contact Proposal
Think realistically about how the child's relationship with the other parent will be preserved after the move.
Consider the Child's Experience
Look beyond the benefits to the relocating parent and consider schooling, friendships, family relationships and the child's emotional adjustment.
Seek Advice Before Committing
Obtain legal advice before resigning from employment, enrolling the child elsewhere, booking permanent travel or otherwise committing to arrangements that assume relocation will be permitted.
The Bottom Line
Relocation disputes require a careful balance between a parent's legitimate ability to rebuild or develop their life and the child's need for stability, security and meaningful relationships with both parents.
International relocation carries specific guardianship and consent requirements, while domestic relocation requires careful attention to parental responsibilities and rights, existing court orders, parenting arrangements and the effect of the move on the child.
Whether you want to relocate or oppose a proposed move, obtain advice before the child's residence is changed. A properly prepared relocation matter should focus on evidence, practical arrangements and, above all, the child's best interests.
Relocation & Parenting Disputes
Danel Campbell Attorneys assists parents with domestic and international relocation disputes, parenting arrangements, parental responsibilities and rights, Family Advocate processes and related court applications.
Explore Family Law Services →This article provides general information about child relocation disputes in South Africa and does not constitute legal advice. The consent requirements, appropriate court process and factors relevant to relocation depend on the particular parental responsibilities and rights, existing court orders or parenting plans, whether the proposed move is domestic or international, and the individual circumstances of the child and family.