WHAT HAPPENS WHEN CUSTODIAL PARENT INTENDS TO RELOCATE


First Published: July 23, 2018

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WHEN CUSTODIAL PARENT INTENDS TO RELOCATE

More often than not, when parents get a court order determining who gets custody of a minor child, this is done with the idea that they will both continue to reside within the same jurisdiction until the order is discharged. This however may change as the custodian parent may for one reason or another decide to relocate to another country. What happens to the child(ren) in that event?.

The non custodian parent may consent to the custodian parent relocating with the minor child(ren) and for them to have modified access which  ensures that the non custodian parent’s rights of access to the children is protected. The parents may reduce their consent to writing and file the file same with the relevant Court.

Where the non custodian parent is opposed to the minor child relocating, there is need for the courts to make a determination on the issue. Either parent can file an application with the High Court as the upper Guardian of all minor children.

It should be borne in mind that the courts in granting custody to the custodian parent also places a presumption in favour of the custodial parent’s right to relocate with a child. The burden is on the non-custodial parent to show that such relocation is not in the best interest of the child. Justice Matanda-Moyo  had this to say in the Duncan v Louw (HC 1600/15) [2015] ZWHHC 201

The court will only interfere with the decision of the custodial parent where such removal would prejudice the rights or welfare of the child.  This is so because the child’s relationship with the custodial person is the most important factor affecting the child’s welfare.  The courts have generally recognised that the well-being of the child is fundamentally interrelated with the well-being of the custodial parent and that the custodial parent is the best person suited to make decisions affecting the child, such as where they would reside.  Judicial interventions should be limited in these matters except in extreme cases where the child’s interests are most likely to be adversely affected.”

 

In the aforementioned case, the burden was on the non custodial parent to establish any risk of harm to the child that may arise from the relocation. The non custodian parent’s lack of financial capacity to visit the child was found to be insufficient reason for opposing the relocation. One must adduce evidence that not only is the relocation not in the child’s best interests but also that it is intended to frustrate the non-custodial parent’s rights of access.

 

In Cruith v Manuel 1999 (1) ZLR 7 (S) at p 14 F-G Muchechetere JA said:

 

The trigger that warrants any interference must therefore be an allegation that, the rights are not being exercised properly and it is therefore in the interests of the child that those rights be interfered with.  The welfare of the child in cases of this nature only becomes an issue when there is an allegation that the exercise by the mother of her rights causes some concern……”

 

The courts are disinclined to impose their own decisions for that of a custodial parent where such person has not been shown to be incompetent to make such a decision. In fact, where the non-custodial parent’s only argument is lack of financial resources to exercise his/her access rights, case law is clear that it is the duty of the parent with access rights to exercise those rights using his own means.  Such consideration has never been used to allow the courts to interfere with the custodian parent’s rights to determine where they and the child live.

Kudzai Kaseke

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