Emigration of minors with the custodian parent

What is the legal position of a divorced parent taking a child overseas permanently?

The custodian parent has to obtain permission of the other guardian if he/she intends to emigrate. If this permission cannot be obtained, the custodian parent must apply to the High Court in terms of the Guardianship Act. The courts will take the following factors into consideration:

1. The best interest of the child

First and paramount consideration

2. Freedom of movement of the guardian that intends to emigrate

3. Possibility of access by the guardian that stays behind.

Can the guardian staying behind afford to travel to the other country and if not, will his/her access to the child be limited to occasional holidays, phone calls and emails

4. The reasons for the emigration

Must be made in good faith and must be reasonable

See also Divorced parent taking child overseas

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Hague Convention on the Civil Aspects of International Child Abduction

What is the legal position if the custodian parent takes a minor child overseas without the permission of the ex spouse?

South Africa has incorporated the Hague Convention which provides for the mandatory return of a child (under 16) removed or retained in breach of the right of custody of any person or institution, to the place in the jurisdiction in which the child had been a habitual resident immediately prior to the removal or retention.

The best interest of the child is of utmost importance, and the court may in its decision place more weight on the child’s long term interest while overriding the short term interest.

A court may however, refuse returning the child if “there is a grave risk that his/her return would expose the child to physically and or psychological harm otherwise placing the child in an intolerable situation.”

In cases where domestic violence has been directed at the mother and not the child, and where the child will not be placed in a position to suffer any physical or serious psychological harm, the court will order a return of a child to the jurisdiction in which the child resided before removal.