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Relocation of minor children post divorce

The relocation of minor children and the intervention of the courts to determine if and when it is in the best interest of the child - Noqekwa v Noqekwa (2456/2012) [2013] ZAECPEHC

This case was addressed in the Eastern Cape High Court, whereby the parties had already been divorced on the 9th of October 2012. The man in this case now brought an application against his ex-wife for a clinical psychologist to be appointed to determine whether it was in the best interests of the minor children to start at a school in a different province to the province they had been residing in at the time of the divorce action. All three children, in this case were boys, their ages being 11, 8 and 4 years. In terms of the divorce settlement agreement, primary care of the minor children was awarded to the mother (respondent), who at the time of conclusion of the agreement, was in the process of relocating to East London.

Children standing inside a plane

The respondent in her answering affidavit stated that she had applied at various schools in East London such as Selborne College, Cambridge and Stirling, but no places were available. She now wished the children attend school at Merrifield Preparatory School, also in East London for the new school term commencing on the 16th January 2013. The applicant was informed by this school that they would admit the elder two children, but would only consider enrolling the youngest child if he spent another year in a playgroup prior to commencement of formal schooling. The school indicated that they wished the elder two children to repeat the grades which they had just completed at their previous school.

The applicant brought this application on an urgent basis under the following terms:

“2. Directing Dr. Gillian Smale, a clinical psychologist, to forthwith conduct an assessment of the minor children and their parents and to report to this Honourable Court as to whether or not it will serve the childrens’ best interests to be enrolled at Merrifield Preparatory School in East London on 16 January 2013;
2.2.1 That in the event of Dr. Smale recommending that the childrens’ best interests will be served by enrolling in Merrifield Preparatory School on 16 January 2013, to in that event make recommendations as to the mechanisms to be put in place in making the transitions of schools as least traumatising to the children as possible;

2.2.2 That in the event of Dr. Smale recommending that the childrens’ best interests will not be served by enrolling in Merrifield Preparatory School the matter be referred to the offices of the Family Advocate to forthwith schedule an enquiry and investigate the bests interests of the minor children with the input and assistance of Dr. Smale and to report to this Honourable Court with its recommendations in respect of:

2.2.2.1 the primary care and residence of the minor children and in particular whether it would serve the childrens’ best interests to permanently relocate and reside with the respondent in East London and remain in her primary care; and

2.2.2.2 the scope of the parties’future contact with the minor children.

2.2.3 That in the event of paragraph 2.2.2.1 above becoming applicable, then pending the outcome of the Family Advocate’s investigation, referred to in paragraph 2.2.2.2 above, that the minor children shall continue to primarily reside with the applicant and commence their school year at St. Dominic’s Priory School in January 2013, subject to reasonable contact between respondent and the minor children by the respondent visiting the children in Port Elizabeth every weekend.”

It is always the duty of the courts to act in the best interests of the minor child. The Court in this case found that even though the divorce matter had been an acrimonious matter, the turmoil experienced by the children could reasonably be expected. The Court found that the relief sought by the applicant in having a psychologist appointed was not necessary. The Court found that the applicant could not show that the relocation of the children and their enrolment in another school was not in their best interests.

The Court also found that the fulltime carer of the children had also relocated to East London to assist the respondent in looking after the children. The Court in this case was basically of the view that sometimes people relocate to different provinces, and some impact on the children cannot be avoided. The application was dismissed with costs.

It often happens after divorce cases that one spouse has to relocate to a different province for work-related or other reasons. This cannot always be prevented and one spouse cannot always prevent another spouse from relocating. At the end of the day, children have to live somewhere with one of the parties post-divorce. The courts will not easily intervene when one spouse relocates to a different province with the children unless there can be proven that such relocation is not in the best interests of the minor child. In the above case the relocation was found to be in the best interests of the minor children.

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