Could a parent in a joint care agreement relocate within SA without the co-parent’s permission?
07 Aug 2023
Our society faces an interesting dilemma when considering parental rights and a minor child’s best interest. On the one hand, both parents are considered equal in a marriage, as per the Constitution. This means that mothers and fathers can fulfil both parental roles. Gender does not determine who becomes the primary caregiver ─ a significant departure from the conservative belief that mothers should always be the primary caregivers unless proven otherwise.
Section 18 of the Children’s Act recognises that both parents are capable caregivers, leading to the common practice in divorce orders to divide childcare on a fifty-fifty basis, especially when divorced parents live in the same area. In such cases, minor children may spend equal time with each parent in fixed periods or on a weekly rotation, and there is no primary caregiver between the two. This progressive approach in South African family law grants both parents the same rights.
However, there are outdated aspects of South African family law. The Children’s Act does not prevent parents from relocating with their minor children to another town or province without the other parent’s consent. Even when care is divided by court order, one parent can move the minor children and change their address without consequences unless the court order specifically prohibits it.
In contrast, a country such as Canada requires a parent to obtain the other parent’s permission or court approval before moving to another province with the children. It is worth mentioning that Section 18(3)(c)(iii) of the Children’s Act does contain a mechanism similar to that of Canada, preventing a parent from unilateral international relocation.
This combination of progressiveness and outdated provisions creates a concerning situation in South African family law. Malicious parents can exploit this loophole and obtain primary caregiver status, even where care is divided between the parents.
Of course, the starting point for any Court, when deciding on a matter involving children, is to consider the child’s best interests. This principle is contained in Section 28(2) of the Constitution, reading:
“A child’s best interests are of paramount importance in every matter concerning the child.”
In S v M (Centre for Child Law as Amicus Curiae)[i], the Court held that Section 28(2) is not to be interpreted simply as a guiding principle, but as a right. The standard of upholding the best interests of the child has also been incorporated in Section 9 of the Children’s Act.
Before the Constitutional dispensation, the Courts generally believed that precedence should be afforded to the mother when deciding who the primary caregiver should be. This belief is evident from decisions such as Myers v Leviton[ii]. The Courts have, however, changed their position in this regard, with judgments such as V v V[iii], where the Court stated:
“…the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.”
In Van Der Linde v Van Der Linde[iv], the Court stated that a man could be just as good a “mother” as the biological mother and a woman can be just as good a “father” as the biological father. The Courts have since followed this approach.
In the recent court case R.M.D v K.D[v], the Court was confronted with the issue where both parents had joint care of their child, with the child rotating between them weekly. Subsequently, the mother relocated too far for shared custody to be practical.
Consequently, the father urgently applied to the High Court to be declared the primary caregiver, and the mother counter-applied for the same status.
The Court stressed that the central issues concerned which parent the child should primarily reside with, and where the child should go to school. The Court emphasised that the traditional belief of mothers being automatically better caregivers is no longer applicable. Both parents can provide equal care and should be treated fairly under the law. The Court’s primary consideration in such cases is the child’s best interests.
In practice, legal practitioners should include clauses in divorce orders to address challenges in cases without a primary residence and with equal care. The clauses should also prevent either parent from relocating the minor children from the area where both parents currently reside without the other parent’s written consent. These steps will protect the children’s stability and enable the other parent to take urgent legal action via a High Court application to declare the other parent in contempt of court and restore the status quo if the agreement is violated.
Hopefully, the legislature will provide stronger mechanisms in the Children’s Act to guard against the relocation of minor children without permission from the co-parent, at least in cases where both parties have joint care of the minor children. The Children’s Act is currently insufficient to support the equality enshrined in the Constitution and subsequent case law.
References:[i]  ZACC 18; 2008 (3) SA 232 (CC) para  [ii] 1949 (1) SA 203 (TPD) 214
[iii] 1998 (4) SA 169 (C) 176F-G
[iv] 1996 (3) SA 509 (O) 515B-C
[v] (16995/22P)  ZAKZPHC 2 (13 January 2023)
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