The Main Factor Courts Consider When Deciding on Child Relocation
When one parent wishes to relocate with a child—either within South Africa or abroad—it often leads to difficult legal and emotional challenges. The court’s primary concern in these matters is always the best interests of the child. Understanding how the court approaches relocation disputes can help parents make informed decisions that protect their child’s wellbeing.
The Court’s Main Consideration | The Best Interests of the Child
Under Section 28(2) of the South African Constitution and the Children’s Act 38 of 2005, every decision involving a child must prioritise their best interests. When a parent applies for permission to relocate with a child, the court weighs whether the move will positively or negatively affect the child’s welfare, stability, and relationship with both parents.
Factors the Court Considers
The court does not automatically favour or oppose relocation. Instead, it evaluates several factors, including:
- The child’s emotional, educational, and social needs
- The relationship between the child and both parents
- The motivation behind the relocation – whether it is in good faith or an attempt to limit contact with the other parent
- The impact on the child’s access to the non-relocating parent
- The potential benefits of the move, such as better schooling, improved living standards, or family support abroad
Ultimately, the court aims to make a decision that best promotes the child’s happiness, security, and sense of belonging.
Parental Rights vs. Child’s Stability
While both parents have rights under the Children’s Act, the child’s stability takes priority. Even if relocation offers a parent better career or lifestyle opportunities, the court will only grant permission if it aligns with what’s best for the child.
Courts encourage co-parenting and maintaining contact between the child and both parents, even after relocation. This could include scheduled visits, video calls, or shared holidays to preserve the parent-child bond.
The Role of the Parent Seeking Relocation
The parent requesting relocation bears the burden of proving that the move serves the child’s best interests. They must demonstrate:
- That the relocation is reasonable and genuine
- That adequate plans are in place for schooling, healthcare, and emotional support
- That continued contact with the other parent will be maintained as effectively as possible
A parent who acts transparently and considers the child’s overall wellbeing stands a stronger chance of gaining the court’s approval.
The Non-Relocating Parent’s Rights
The non-relocating parent retains the right to oppose relocation and present evidence showing how the move may harm the child’s welfare or relationship with them. Courts often encourage mediation or parenting plans to find solutions that minimise disruption and preserve meaningful contact.
FAQs
- Can a parent relocate with a child without the other parent’s consent?
No. If both parents share parental rights and responsibilities, consent or a court order is required before relocation. - How does the court assess the child’s best interests?
The court evaluates emotional, developmental, and relational factors, focusing on the child’s welfare above parental convenience. - Does the child’s age influence the decision?
Yes. The court often gives more weight to the views of an older, mature child capable of expressing their preferences. - Can a relocation decision be changed later?
Yes. If circumstances change significantly, either parent can apply for the variation of the court order.
Protect Your Parental Rights With JA Attorneys
Relocation disputes require sensitivity, strategy, and strong legal guidance. JA Attorneys specialize in family and child law, helping parents navigate complex relocation cases with clarity and care. Our experienced legal team ensures your rights—and your child’s best interests—remain fully protected.
Contact JA Attorneys today for professional legal assistance in child relocation matters. For immediate legal assistance across South Africa, speak to one of our experienced attorneys by contacting us on the number below:
JA Attorneys Head Office call: 011 483 2741.