KZN mother wins court battle to relocate to Portugal with her son despite father's objections

The KwaZulu-Natal High Court in Durban has granted a mother permission to relocate to Portugal with her 11-year-old son, following a contentious custody battle with her ex-husband.

The parents have been co-parenting since their divorce in 2018.

In January 2020, the father instituted proceedings for formalised contact with his son. In a twist, the mother responded with an application seeking an order permitting her to relocate to Turkey with the child. 

In February 2021, the father escalated his claims, seeking to secure primary residency of their child, which led the mother to propose relocating to Portugal instead.

In her first relocation application, the mother, who works as software engineer, said she was offered a scholarship to study a Master’s degree but her plans failed after the father opposed the move to Turkey, leading her to complete the program online instead.

She admitted that the motivation to move to Turkey was self-centred as it was based on improving her own academic qualifications and a more secure lifestyle. Additionally, she was further motivated by the prospects of being closer to her daughter who works in Rome and her sister, who is also based in Belgium.

She acknowledged that her decision to move was in retaliation to the father's application seeking increased visitation with their son.

Regarding her move to Portugal, it was revealed that her primary motivation to relocate was a deep-seated and desperate need to be with her elderly parents, who had decided to relocate to Portugal.

During cross-examination, it was put to her that her application to relocate to Portugal was equally self-centred and motivated by her interests rather than that of the son, and, furthermore, it served as a response to the father's desire for primary custody. She denied the contentions and maintained that the move would be in her and son's best interests.

She provided a host of factors in support of their relocation. These included the fact that her extended family, including her parents, are relocating to live permanently in Portugal, and that, if she is unable to relocate with her to Portugal, she will be isolated in South Africa, primarily because she and the son have lived with her parents since the time of her separation from the ex-husband in 2017.

She further contended that her parents owned a property in rural setting and her remote employment would not be impacted by the move, particularly as she is now in possession of a D3 visa, issued by the Portuguese authorities, known as a highly qualified activity visa. These visas are colloquially referred to as scarce skills visas.

She said she was now more mature and has carefully thought through her decision to relocate to Portugal, in contrast to the almost hasty decision to leave for Turkey. In August 2022, she travelled to Portugal alongside her parents, she was convinced that it offered an ideal setting for her son’s upbringing and a supportive community for her to thrive within her extended family.

She mentioned that her son would enjoy greater safety and a more stable lifestyle by living in a European country. Additionally, she shared that her parents have acquired and developed a smallholding featuring three separate units, spacious enough to welcome her two siblings, who are also planning to relocate to Portugal. Moreover, her parents also own a beach flat 15km away from their housing estate.

The father, however, argued vehemently against the move, positing that the mother’s reasons were primarily self-serving, likely to yield no significant benefit for their son.

He mentioned that his son is currently enrolled in a private school and is covered by a medical aid, all financed by him. In contrast, moving to Portugal would mean that his son would attend a public school and rely on public healthcare services.

Furthermore, he said the mother would still remain employed as a software engineer with her present company, there are no career or financial benefits for her arising from the move. 

Judge Mahendra Ramasamy Chetty maintained that the mother has a right to exercise her choice as a parent in pursuit of a better life for her and her child.

The judge said the mother was reasonable and indicated that the son will continue to visit his father. She approached the situation with flexibility and did not act unreasonably, especially since the father will not incur any travel expenses.

Judge Chetty said the father will have physical contact with his son during European summer and winter school holidays.

"The costs of the child’s flights and travels between South Africa and Portugal, which are to take place bi-annually, during the European winter school holiday period and during mid-year, are to be paid by the defendant (mother)," said the judge.

The father is required to continue making the same financial contribution he provided while the child was in South Africa. Additionally, he will be responsible for covering school fees that match those charged by Al Falaah College, which the son attended.

sinenhlanhla.masilela@iol.co.za

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