Can my ex relocate with our child without my consent?

It depends on where your ex wants to go, and on whether you are a guardian of the child. If your ex wants to take the child to live in another country, they need the written consent of every guardian, and if you hold guardianship that means your consent, or a court order that dispenses with it. If your ex wants to move within South Africa, the law does not require your consent as such, but the move cannot simply override an existing court order or parenting plan, and you can ask a court to stop it or to rearrange contact. In both cases, a dispute is decided on one question, what is in the child's best interests, and the Office of the Family Advocate will usually be asked to investigate and report.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

So the short answer is this. Abroad: no, not without your consent or a court order. Within South Africa: possibly, but not in a way that tramples your contact.

Guardianship is the key

Under the Children's Act 38 of 2005, a guardian's consent is required for a child to get a passport and for a child to leave the country. A mother is a guardian automatically. A married father is a guardian. An unmarried father is a guardian if he acquired full parental responsibilities and rights, either because he was living with the mother in a permanent life partnership at the birth or because he consented to be identified as the father and contributed to the child's upbringing and expenses. See what are my rights as an unmarried father.

If you are a guardian, Home Affairs should not issue a passport for the child without your consent, and the child should not be allowed to leave the country without it. Where a guardian refuses consent, the other guardian can ask the High Court to dispense with it. That is the route a relocating parent must take, and the court will only grant it if the move is in the child's best interests.

How a relocation dispute works, step by step

Step one: the proposal. The parent who wants to move should put a proper plan in writing: where, why, what the housing, schooling and medical arrangements will be, and how contact with the other parent will be maintained, including who pays for travel.

Step two: mediation. The Office of the Family Advocate offers mediation for free. Many relocation disputes settle here with a revised parenting plan that trades frequent short contact for longer holiday blocks and daily video calls.

Step three: the Family Advocate's investigation. If there is no agreement, a court will usually ask the Family Advocate to investigate and report on what is in the child's best interests. This involves interviews with both parents and, depending on age, the child.

Step four: the court. An application to permit or prevent relocation abroad is brought in the High Court. Disputes about a move within the country can go to the Children's Court or the High Court, depending on what order already exists and what relief is sought. The court hears both sides, reads the Family Advocate's report, and decides.

Step five: the new order. Whatever the court decides, it will usually set out a new contact arrangement. If the move is refused, the parent who wanted to go must choose between staying and going without the child.

A worked example

Take a made-up family. Ayanda and Mark divorced two years ago. Their daughter Mia is seven and lives mainly with Ayanda in Johannesburg. Mark has her every second weekend and half of every school holiday under a parenting plan that is a court order. The figures are illustrative only.

Ayanda is offered a promotion in Cape Town. She tells Mark. Mark says no.

Ayanda cannot simply leave. The parenting plan is a court order, and moving to Cape Town would make alternate weekends impossible. She writes a proposal: Mia would attend a named school, live in a three-bedroom house near Ayanda's sister, and see Mark for two long weekends a term, most of every holiday, and a video call every evening. Ayanda offers to pay Mia's flights, which she estimates at R2 000 a return trip, and to bring Mia to Johannesburg for Mark's birthday and Father's Day.

Mark still refuses. They go to mediation at the Family Advocate. Mark's real concern is that he will become a stranger to Mia. Mediation produces an agreement: the move goes ahead, Mark gets the contact Ayanda proposed plus a full week in Johannesburg each term, and the maintenance Mark pays is adjusted to reflect the travel costs Ayanda will carry. The Family Advocate endorses the revised plan and the court makes it an order.

Now change one fact. The promotion is in Dubai. Mark is Mia's guardian, so Ayanda needs his written consent for Mia's passport and for Mia to leave. Without it, Ayanda must apply to the High Court to dispense with his consent, with a full relocation plan and, usually, a Family Advocate report. Mark opposes. The court will weigh the genuine benefits of the move for Mia against the loss of a close relationship with her father, and will look hard at whether the contact Ayanda proposes can actually work across two countries. Cases like this are decided on their facts, and nobody can promise Ayanda or Mark an outcome.

What to do this week

1. Check whether you hold guardianship. If you are an unmarried father, gather proof that you meet the tests.
2. Find your existing court order or parenting plan and read exactly what it says about residence and contact.
3. If you have heard about a planned move, ask for the plan in writing. Do not react by text message.
4. If you believe the child is about to be taken out of the country without your consent, contact an attorney or Legal Aid the same day about an urgent application, and notify SAPS.
5. If you are the parent who wants to move, draft the written proposal and book a mediation session at the Family Advocate.
6. Keep a contact diary. Courts want to see the relationship the move would affect.

Documents to gather

• the child's birth certificate and your identity document
• any divorce order, parenting plan or Children's Court order
• proof of your involvement: school records, medical records, photographs, messages
• for the relocating parent: the job offer, proof of housing, school acceptance, medical cover, and a costed contact plan
• for the opposing parent: evidence of the child's ties here, such as extended family, school, therapy or sport
• any messages about the proposed move

A realistic timeline

Mediation can be arranged within a few weeks. A Family Advocate investigation typically takes a few months. An opposed High Court relocation application can take six months to a year to be heard, and longer in busy divisions. Urgent applications to stop an imminent removal can be heard within days. A parent who books a flight before the process has run is taking a serious risk.

Common mistakes and what they cost

Leaving first and asking later. Removing a child abroad without consent can amount to abduction. South Africa is a party to the Hague Convention on international child abduction, and the child can be ordered back. The parent who left will struggle to be trusted by any court afterwards.

Refusing consent out of spite. A court can dispense with consent that is withheld unreasonably, and a parent who refused a reasonable plan may be ordered to pay costs.

Offering a vague plan. "I will make sure she sees you" is not a plan. Courts want dates, flights, costs and a school name.

Using the child as a messenger. Anything a seven year old repeats to the Family Advocate about "Daddy says Mommy is taking me away" harms the parent who said it.

Ignoring an existing order. A move that breaches a court order can be reversed and can lead to contempt proceedings.

What the court weighs

The court is not deciding whether the relocating parent deserves the promotion. It is deciding whether this child's life will be better or worse. In plain words, the Children's Act 38 of 2005 asks the court to look at the child's relationship with each parent and with the wider family, the child's age and views, the effect of any change on the child, the reasons for the move and whether they are genuine, the practicality of the proposed contact, and each parent's attitude to the other's role. A well-planned move by a primary carer with a genuine reason is often allowed with a strong contact plan. A move that looks designed to cut the other parent out is often refused.

If you cannot afford an attorney

The Office of the Family Advocate mediates and investigates for free. The Children's Court is free and needs no attorney for disputes about contact and care within the country. Legal Aid South Africa on 0800 110 110 applies a means test and can take on High Court relocation and Hague matters if you qualify. University law clinics in the larger centres can also help. For an idea of what private attorneys charge, see what family law costs.

If the reason for the move is to escape domestic violence, say so early. A protection order is a separate free process at the Magistrates' Court, the GBV Command Centre on 0800 428 428 can help you plan safely, and in an emergency call SAPS on 10111. Courts treat a documented history of abuse as central to the child's best interests.

Frequently asked questions

Parents ask whether the other parent needs consent for a holiday abroad. Yes. Leaving the country, even for two weeks, needs the consent of every guardian, and immigration officials can ask for the consent letter. A parent who refuses a reasonable holiday can be taken to court.

Parents ask whether a move to another town in the same province needs consent. Not in law, but if it breaches an order or defeats contact, the other parent can apply to court, and the court can refuse the move or reset contact.

Parents ask what happens if the child has already been taken abroad. Contact the Office of the Chief Family Advocate, which acts as the Central Authority for Hague Convention return applications, and an attorney or Legal Aid, immediately. Time matters.

Parents ask whether maintenance changes when a child relocates. It can. Travel costs are a legitimate factor and either parent can ask the Maintenance Court to vary the order. See how to change a maintenance order.

Finally, parents ask whether the child's wishes count. They do, in proportion to the child's age and maturity, and the Family Advocate will usually speak to an older child directly.