Relocating with Children After Divorce – South African & Global Perspectives

Introduction – Why Relocation Cases Are So Complex

Relocating with children after divorce is one of the most sensitive and complex issues in family law. Whether you are moving within South Africa or abroad, the law requires that every decision be made in the best interests of the child.

At SD Law, we’ve guided parents through this process for over a decade — from negotiating parenting plans and mediation to preparing successful court applications. This guide explains the legal principles, practical steps, and emotional considerations you need to be aware of before making a move. We also compare South African law with approaches in the UK, EU, and US, giving you a global perspective on what to expect.

Watch: International Child Relocation | How South African Courts Decide What’s Best for the Child

1. South Africa: The Children’s Act & Best Interests Principle

In South Africa, relocation with a child after divorce is governed by the Children’s Act 38 of 2005. Any move that significantly affects the other parent’s rights of contact requires either that parent’s consent or a court order.

Courts apply the best interests of the child standard, considering factors such as:

• Continuity in education.
• The child’s emotional stability and support structures.
• The feasibility of maintaining a meaningful relationship with both parents.
• The child’s own views, as expressed in a Voice of the Child assessment.

Process Overview:

1. Review the parenting plan – Adjust to accommodate new arrangements.
2. Attempt mediation – Courts expect parents to explore resolution before litigation.
3. File a relocation application – Provide a detailed plan for the move, schooling, and maintaining contact with the other parent.

Key Insight: South African courts are increasingly sensitive to the emotional and developmental impact of relocation on children, especially when the move is international.

2. United Kingdom: The Welfare Checklist

In the UK, relocation with children after divorce is governed primarily by the Children Act 1989. Any move that would significantly affect the child’s contact with the other parent requires either the other parent’s consent or a court order.

Courts assess relocation applications using the Welfare Checklist, which includes:

• The child’s wishes and feelings (considered according to their age and maturity).
• The child’s emotional, educational, and physical needs.
• The likely impact of any change in circumstances.
• Each parent’s capability to meet the child’s needs.
• Any risk of harm or disruption to the child’s welfare.

A landmark UK case, Payne v Payne [2001] EWCA Civ 166, established that while the custodial parent’s wishes are relevant, the overriding concern remains the child’s welfare.

Mediation and early agreement are strongly encouraged to reduce conflict and avoid the emotional strain of litigation.

3. European Union: Best Interests Under Brussels IIb

In the EU, international child relocation within member states is primarily regulated by the Brussels IIb Regulation(Regulation (EU) 2019/1111). This ensures cooperation between courts in different EU countries when parents live in separate jurisdictions.

Key points include:

• The child’s habitual residence determines which court has jurisdiction.
• Both parents’ rights of custody and contact are protected under EU law.
• Moves that significantly reduce the other parent’s contact are closely scrutinised.
• Mediation is encouraged but court approval is often required.

Example: If a parent wishes to move from France to Spain, the court in France (the child’s habitual residence) will typically decide the case, focusing on the child’s welfare and the feasibility of cross-border contact (travel arrangements, school schedules, and digital communication).

When moving between EU and non-EU countries, additional treaties such as The Hague Convention may apply.

4. United States: State-by-State Variations

In the US, relocation laws vary widely from state to state, but the best interests of the child is the consistent guiding principle.

Examples:

• California: Uses the LaMusga Factors (from In re Marriage of LaMusga, 2004), which weigh the reason for the move, the child’s relationship with each parent, and the feasibility of maintaining contact. California generally recognises a custodial parent’s presumptive right to relocate unless harm to the child can be shown.
• New York: The Tropea Standard (Tropea v. Tropea, 1996) is a holistic approach that considers the move’s effect on education, emotional well-being, and parental relationships. No automatic presumption is given to either parent.
• Texas: Frequently includes “geographic restrictions” in custody orders, requiring court approval for moves beyond a set area. Relocation typically involves modifying the custody arrangement.

US courts often require detailed evidence, including parenting plans, visitation proposals, and sometimes expert testimony, before granting relocation.

5. Key Global Similarities

Across jurisdictions, certain themes remain constant:

• Best interests of the child is the core legal test.
• Courts look for stability, continuity, and emotional security.
• The child’s voice is increasingly valued in decisions.
• Mediation is preferred to avoid the adversarial nature of litigation.

6. Strategic Considerations Before You Relocate

Before initiating a relocation:

1. Review and update your parenting plan.
2. Engage in mediation to find common ground.
3. Prepare a detailed relocation plan (housing, schooling, support networks).
4. Anticipate the other parent’s objections and address them proactively.
5. Factor in timelines — legal processes can take months.

Conclusion: Navigating Relocation with Clarity and Care

Relocating with children after divorce is never just a logistical decision — it’s a legal, emotional, and often deeply personal challenge. While the specifics vary between South Africa, the UK, the EU, and the United States, one principle is universal: the best interests of the child must remain at the heart of every decision.

Approach the process with preparation, respect, and a child-focused mindset. The right legal advice can protect your rights, uphold your child’s welfare, and give you the confidence to move forward.

How We Can Help

At SD Law, we have extensive experience handling international child relocation and cross-border custody disputes. We:

• Develop compliant, child-centred parenting plans.
• Represent parents in relocation applications and negotiations.
• Work with a global network of family law experts for multi-jurisdictional cases.

South African Clients: Learn more at sdlaw.co.za.

International Relocations: Contact us

Your family’s future is worth protecting — let us help you navigate the journey.

SD Law – Simon Dippenaar & Associates Inc.

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