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Question
Posted by: Jen | 2010/08/25

MINOR CHILD

My fiance is divorced with a minor child aged four. We live in Cape Town and his ex-wife (also living in our area) wants to move (with the child) to Johannesburg. They share co-guardianship of the child as per their divorce agreement. Can the mother remove the child without the father''s consent? Can the father legally request that the child lives with him permanently? They have a good parental relationship at the moment regarding visitations, etc. The mother''s priorities are starting to change regarding their daughter''s care  i.e. unstable home, unemployed, various men. My fiance pays maintenance, pays for the school fees and other extras. Thank you.

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Our expert says:
Expert ImageFamily law expert

Your husband can oppose the relocation of the child, for reasons that he is in a better position to provide for the financial needs of the child, where the mother did not have concrete financial arrangements for both herself and the child should they move. Such an opposition shoould be addressed by way of a court application. Altough you have not given me all the fact it seems that the move might not be in the child's best interests but in order to advise properly I will need more information.

The courts consistently apply the criterion that the child's best interests are paramount. What is in the child's best interests, however, depended on the facts of the particular case. In deciding whether or not relocation would be in the child's best interests, the Court will evaluate, weigh and balance a myriad of competing factors, including the child's wishes in appropriate cases. From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involved fundamental rights to dignity, privacy and freedom of movement.

Courts are also required to be acutely sensitive to the possibility that differential treatment of custodian and non-custodian parents could, and often did, constitute indirect gender discrimination as it was still predominantly women in South Africa who were the custodian parents. In determining whether the proposed move was in the best interests of the child, the Courts consider the custodian parent's interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which that decision was based, and the extent to which he or she had properly thought through the advantages and disadvantages to the child of the proposed move. The views of a child is also a factor which the Court will take into account.

Bertus Preller
www.divorceattorney.co.za
bertus@divorceattorney.co.za

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Our users say:
Posted by: family law expert | 2010/08/28

Your husband can oppose the relocation of the child, for reasons that he is in a better position to provide for the financial needs of the child, where the mother did not have concrete financial arrangements for both herself and the child should they move. Such an opposition shoould be addressed by way of a court application. Altough you have not given me all the fact it seems that the move might not be in the child's best interests but in order to advise properly I will need more information.

The courts consistently apply the criterion that the child's best interests are paramount. What is in the child's best interests, however, depended on the facts of the particular case. In deciding whether or not relocation would be in the child's best interests, the Court will evaluate, weigh and balance a myriad of competing factors, including the child's wishes in appropriate cases. From a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involved fundamental rights to dignity, privacy and freedom of movement.

Courts are also required to be acutely sensitive to the possibility that differential treatment of custodian and non-custodian parents could, and often did, constitute indirect gender discrimination as it was still predominantly women in South Africa who were the custodian parents. In determining whether the proposed move was in the best interests of the child, the Courts consider the custodian parent's interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which that decision was based, and the extent to which he or she had properly thought through the advantages and disadvantages to the child of the proposed move. The views of a child is also a factor which the Court will take into account.

Bertus Preller
www.divorceattorney.co.za
bertus@divorceattorney.co.za

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