The Western Cape High Court has ruled it would be in the best interests of a 12-year-old boy to relocate to Germany following a custody battle between his divorced parents.
Judge Gayaat Salie granted the mother, an air traffic controller who accepted a job offer in Germany, the right to have her son permanently removed from Cape Town to live with her despite the father submitting a counter application.
In her judgment, Judge Salie said: “The most salient words were however expressed by none other than the minor parties’ 12-year-old son, who forms the subject of this application.
‘It’s going to be a loss for one of the parents and a loss for me no matter what’.
“This heartfelt comment well illustrates the thorny feature of this type of applications in family matters. In a locale where both parents are stressing what they consider the best interest for their child, the consequent impasse places the court as the upper guardian of the minor child to make that decision.
“Through the development of our case law, in line with our Constitutional imperatives and the Children’s Act 38 of 2005, this decision must be considered along with various criteria applied to the facts of the matter. It is undeniable that each family dynamic is different and unique,” said Judge Salie.
According to court documents and two expert reports, the boy said he wanted to relocate to Germany with his mother.
After their 2015 divorce, “both parents cared for their son on an almost equal basis. Both play an important role in the minor’s daily life and interests”, the judgment noted.
The father had raised a number of concerns relating to his son’s accommodation, health care and schooling, including holiday contact and daily contact.
“The father finds a position where he would not see his son for three or more consecutive months as simply untenable particularly since father and son had spent time with each other equal to that of the (mother and son).
He is of the view that his son is at a vulnerable state of his development, and moreover given his generalised anxiety for which he attends psychotherapy sessions, he should not leave now but may sometime in the future when he is older.
“The father’s overarching concern is that his current close bond with his son will not survive relocation and that they will both miss out on their relationship,” the judgment read.
“The information placed before me, together with a balancing of all the relevant factors and applicable legal principles, satisfies me in coming to the conclusion that it is in the minor child’s best interests that the application for his relocation to Germany be granted now.
“A delay in his relocation would amount to him commencing the German academic year mid-way (January 2025) when his peers would have already commenced in August this year. I believe this would alleviate his anxiety as his peers would be in a similar boat so to speak and he can get support from the navigation of new terrain which his peers would similarly have to tread,” said Salie.
Cape Times