Immigration and relocation: What are your rights?

The news that your former spouse intends to emigrate, taking your children with them, is devastating. What are your rights in this difficult situation?

In South Africa, all legislation related to the contact you, as a divorced parent, enjoy with your child (previously known as ‘access’) is contained in the Children’s Act of 2005. It outlines all your responsibilities in terms of caring for your child, having contact with them, maintenance and guardianship.

An outstanding feature of this act is that it has been carefully formulated to look at these issues from the child’s point of view. In the past, a parent’s rights vis a vis their children were paramount but the Act has changed the emphasis first to the responsibilities you as a parent have towards your child, and of secondary importance are your rights which can only be exercised by you in the “best interests” of your child or children.

But these responsibilities and rights become complex when the parent with whom the child lives choose to relocate, whether that means moving to another South African city or immigrating overseas. Of course, such a decision is never taken lightly; making a new life is difficult, but if better opportunities present themselves (from lucrative employment to better security), it’s not easy to let them pass by.

For the other parent, though, a new home means less contact with their child. Your knee-jerk reaction may be to try and prevent the relocation – but is this legal?

In terms of the Act, no parent can move beyond the borders of South Africa without first obtaining the consent of their ex-spouse. Failure to do so will have severe consequences. That said, the remaining parent must be able to show that they have good reason for withholding consent.

If this becomes a sticking point, with both parents caught in a deadlock, either parent may institute an application in court.
The court will use the ‘best interests of the child’ standard to make a decision either way, taking into consideration a number of criteria. These range from the nature of the relationship between the child and her parents to the parents’ attitude towards their child and how they exercise their responsibility, as well as their capacity to provide for her emotional and intellectual needs. The court will also weigh up the likely effect of separation from the child’s parents, siblings or other caregivers, and the practical difficulties and expense of maintaining contact with the remaining parent, especially if these factors may impede the child’s ability to maintain the relationship. Other deciding issues include the need for the child to remain in the care of her parents and to maintain a connection with her family, culture or tradition; her age, maturity and stage of development, gender, background and any other relevant statistics; and her physical and emotional security and intellectual, emotional, social and cultural development. The application will obviously be influenced by factors such as whether or not the child has any disabilities or chronic illnesses or has encountered any family violence. Finally, the court will bear in mind the need for a child to be raised within a stable family environment, free from physical and psychological harm – as well as the fact that any action taken must minimise further legal or administrative proceedings.

The motivations of the relocating parent will also come under the spotlight, and the court will seek to ensure that appropriate plans have been put in place.

Bearing in mind the Act’s accent on the child, it makes room for the child to participate in decisions made about them. No court will grant an order without parents first consulting their child in an age appropriate fashion. All views expressed by children are assessed with an eye on their age, maturity and developmental stage.

Although courts generally find in favour of the primary caregiver, there is hope for the parent left behind: thanks to electronic communications like Skype, ‘virtual visits’ are fast becoming the norm. Courts worldwide, including South Africa, have embraced these – and while an online ‘hello’ may not be the same as a hug, it can go a long way when you’re missing the one you love.

By Gillian Lowndes, attorney specialising in family law