Frequently asked questions regarding relocation and consent when it comes to minor children

Frequently asked questions regarding relocation and consent when it comes to minor children

Relocation – Are you planning on relocating to another country or moving to a different province within South Africa with your minor child? Are you concerned about the issue of consent from the other parent? Below are some frequently asked, and related questions on the topic. We would encourage you to post and answer some of the questions, or just leave a comment.

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Parents often decide to relocate with their minor children. However, they do not always understand the legal requirements and implications involved. For example, can they just leave the country with the minor child or do they require the other parents’ consent? Furthermore, if consent is required and refused; what are the remedies available to that parent? With regard to the issue of moving from one province to another, unless a court order stipulates otherwise, consent is not required. However, the relocation from one province to another could have an effect on existing parental responsibilities and rights. Under these circumstances, a variation of the court order would be warranted.

There are therefore also other issues involved when it comes to relocation. For example, what contact would the other parent who remains in South Africa have to the minor children after relocation? The aforementioned questions and a range of other related questions may be posed and answered below. Feel free to post your question should this blog post not have answered it.

Can I move from South Africa to the United Kingdom with my child without the father’s permission?

If the father has parental responsibilities and rights of guardianship, his consent is required for the relocation to the United Kingdom. For example, if the father and the mother were married, then under those circumstances unless an order of court determines otherwise, the father’s consent is required. If the father was not married to the mother, but in a long term relationship when the child was born, and involved in the child’s life after birth, then his consent under the circumstances would also be required.

What do I do if the father refuses to consent to relocate to Germany?

advice-child-maintenance-child-custody-divorceIf a parent refuses to provide the necessary consent for relocation to another country, in this case, Germany, then the Court must be approached. Basically, you would ask the court to dispense with the requirement of the father’s consent. The court would determine the case based on what is best for the minor children involved.

What type of care and contact would the other parent exercise if I relocate to Saudi Arabia?

In this digital age, there is no reason why a parent cannot have regular contact to his or her child if they live in different countries. Usually, contact would take place via Skype, WhatsApp, FaceTime, or other digital means. Email and other messaging services are also effective. When the children returns for holidays or the parent visits them overseas, then contact should be reasonable. For example, a few days with the non-custodial parent.

May I relocate with my child to Canada or the United States?

advice-child-maintenance-child-custody-divorceYou may relocate with your minor child to Canada, the United States, or to any other country if you have the father’s consent. However, consent is not always required if the father does not have guardianship rights. If you were married to the father or he was involved in the child’s life, by visiting and paying maintenance, then his consent would be required.

My child does not have a passport. Do I require the father’s consent to obtain one?

In terms of the Children’s Act, if a father has parental responsibilities and rights of Guardianship, his consent is required for the minor child’s application for a passport. If the father’s name is on the birth certificate, more than likely the Department of Home Affairs would insist on having his consent.

Can a mother move a child away from the father?

Under normal circumstances, a mother cannot move a child away from the father. However, if it is in the child’s best interest, it will be allowed. It is best to obtain a court order dealing with the parties’ parental responsibilities and rights under the circumstances. Alternatively, a social worker or childcare expert should have advised the mother that that would be in the child’s best interest.

When can a child legally decide which parent to live with?

In South Africa, a child is no longer under the guardianship of a parent when he or she turns 18 (eighteen) years old. Therefore when the child turns 18 (eighteen) years old, he or she can decide where he wants to stay, and with whom he wants to stay. The same applies in the case of the relocation. The father’s consent would not be required should the minor child decide to relocate to another country with a mother. The opposite also applies.

Can I get a passport for my child without the father’s consent?

advice-child-maintenance-child-custody-divorceIn terms of South African law, both guardians’ consent is required for a child applying for a passport. Therefore, if the father is a holder of guardianship, his consent is required. The Department of Home Affairs may insist on the father being present at their offices to give consent.

Can I move with my child without the father’s permission?

If you wish to move to a different province or to a different city within South Africa; technically you do not require the father’s permission unless there is a Court Order stating that you require his consent.

Can I change my child’s last name without the father’s consent?

The Department of Home Affairs would require both parents’ consent. If the child has the father’s surname, you would definitely require the father’s consent. If the mother remarried and wants the child to have the surname of the step-father, and the child currently has a mother’s maiden surname, then in those circumstances the Department of Home Affairs might decide not to persist with the father’s consent if he cannot be found.

Can a mother take a child out of the country without the father’s permission?

This depends on whether or not the father has guardianship rights over the minor child. If the father has guardianship rights over the minor child then, he would require the mother’s consent. Furthermore, the Department of Home Affairs would require the father’s consent before the child may leave the Republic of South Africa if the father has guardianship rights.

Can I take my child overseas without the child’s father’s permission?

If the father has rights of guardianship over the child then you require his permission to take the child out of the Republic of South Africa. This applies whether or not you intend to relocate to another country or you would like to take the child away on a holiday.

Can a mother move a child away from the father in South Africa?

advice-child-maintenance-child-custody-divorceA parent (in this case the mother) has to always act in the child’s best interest. However, under certain circumstances, the mother may have to move to a different province or to another country. Under those circumstances, the court would look at what is best for the minor child. Should the child remain in the province or in the country with the other parent who cannot care for him or her? Obviously not, unless the situation warrants it. Those are the factors that the court would have to look at.

May grandparents take the minor child abroad?

Yes, a grandparent may take a minor child abroad. However, the grandparent would require the consent of both the minor child’s parents if they are both guardians.

Can I get my child a passport without the father’s consent?

In terms of the Children’s Act, both guardians are required to give consent for the minor child’s application for a passport. Therefore, if the father has guardianship rights over the minor child, then his consent is required.

Can a mother terminate a father’s parental rights when she moves overseas?

advice-child-maintenance-child-custody-divorceA mother cannot terminate a father’s parental rights and responsibilities. Even if she moves overseas, she can’t. Only a court of law can do that. However, it is possible under certain circumstances that the father does not have parental responsibilities and rights. In those cases, he can acquire parental responsibilities and rights if he gets involved in the child’s life.

 

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Related Post

Top and the best advocate or attorney for your family law legal matters

When it comes to Family Law, it is of paramount importance that you use the best trust account advocate or attorney for your legal matter. Not necessarily the most expensive or most experienced. It, therefore, does not have to be the top lawyer or well-known advocate in the field. However, the trust account advocate or attorney must be someone you can work with and who is willing to fight for you. This applies whether you are dealing with a child maintenance matter or a relocation consent application. It is even more critical if you are dealing with a sensitive matter involving parental alienation. If you cannot work with your attorney or trust account advocate, the results will not be as best as they could have been. Even worse, your case may be doomed if the attorney or trust account advocate is unwilling to fight smartly for you. This is sad because, in most family law matters, the subject is the minor child.

A scenario on what Trust Account Advocate or attorney to choose

The best way to illustrate the above is by way of an example. As stated, the best or top lawyer is not what you should look at in all circumstances. The attorney or trust account advocate must be willing to fight for you. It goes without saying that a highly experienced attorney or trust account advocate is needed under certain circumstances. But not always. Consider your budget and whether you can fuel litigation until the end.

Child Relocation matter – Top Tip

Let us use a child relocation matter as an example. Suppose you are the child’s mother and want to relocate to the United States of America. Your child is 15 years old, and because she is a minor, you require the biological father’s consent because he has parental responsibilities and rights of the minor child. The biological father however does not want to consent to the relocation, and his reason is that he would not see the child as often as he would. Indeed, he would not see the child as often as he would have. However, that is only one aspect of the case. One also needs to look at the benefits the relocation of the minor child to the United States of America would have him or her. Another consideration is whether or not the father can care for the minor child as well as the mother can. Each case is different.

How to choose the best possible attorney or trust account advocate in the above scenario?

Let us apply some common sense principles in finding the best attorney or trust account advocate for you should the above scenario apply. Seeing that the father of the biological child does not want to consent to the relocation of the minor child, you have no alternative but to approach the Court. The High Court, the upper guardian of all minor children, has the authority to dispense with the requirement of the father’s consent. In essence, what this means is that this consent is no longer required.

The best interest of the minor child’s principle – Best you follow it

The Court will only make such an order if it is convinced it would be in the minor child’s best interest. If it is not in the minor child’s best interest for the relocation to take place and then in that regard, the Court would not make such an order. You, as the parent, would, of course, be allowed to relocate to the United States of America; however, you would not be allowed to take the minor child with you. Another aspect is to consider is if the mother does relocate to the United States of America, is it possible for the father to adequately care for the minor child? Most times, he would be able to. But not always.

What happens if you do not make use of the best advocate of attorney for your case – Top problem

Now that we understand the legal principle applicable, it is important that when seeking an attorney or trust account advocate, they can work with you to obtain the best results possible. In other words, if you and the attorney or trust account advocate cannot see eye to eye on what results are required and how to get them, then you would be wasting your money. For example, suppose you use an attorney or trust account advocate who is pro-father only  (as opposed to pro-equal rights) and not on the same page as you regarding the desired outcome. Then, in that case, it is improbable that the desired outcome would be reached. The attorney or trust account advocate would not fight for you the way they should. This is so even if the attorney or trust account advocate is the best in other aspects of family law—for example, child maintenance.

Last words on finding the top and best attorney or trust account advocate for you – Best and Top advice

There is no one-size-fits-all when seeking the top and best attorney or trust account advocate for your case. As clients differ, so do attorneys or trust account advocates. However, getting along well with your attorney or trust account advocate is essential, and that would ensure the best results. Professionalism is one then, but incompatibility is another. Best of luck finding the best attorney or trust account advocate for your legal matter. Reminder, don’t look for the best only. Look for an attorney or trust account advocate willing to fight for you. 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I require reasonable contact with my minor child. I want to approach the High Court. Please provide an example of an Application.

If you are seeking contact with your child, you may approach the High Court for assistance, the process can vary slightly depending on the High Court or province. However, the general principles remain the same. Here are general steps that you may consider taking, but keep in mind that it’s important to consult with a family law attorney or advocate in your specific location to get accurate and tailored advice:
  1. Consult with an Attorney or Advocate:

    • Before taking any legal action, it’s advisable to consult with a family law attorney or Advocate. They can provide guidance on the specific laws and help you understand your rights and options.
  2. Mediation or Alternative Dispute Resolution:

    • In some jurisdictions, before going to court, parties may be required to attempt mediation or alternative dispute resolution methods to reach an agreement outside of court. This can be a less adversarial and more cooperative approach.
  3. File an Application:

    • If informal negotiations or mediation do not lead to an agreement, you may need to file a formal application with the High Court. This document will outline your request for access or visitation rights.
  4. Serve Legal Documents:

    • After filing the Application, you will need to ensure that the other parent is served with legal documents notifying them of the court proceedings. This is typically done by a Sheriff of the High Court.
  5. Attend Court Hearings:

    • There will likely be court hearings where both parties present their cases. It’s crucial to attend these hearings and be prepared to provide evidence supporting your request for access to your child.
  6. Court Order:

    • If the court determines that it is in the best interests of the child for you to have access, they may issue a court order outlining the terms of visitation or access rights.
  7. Follow Court Orders:

    • Once a court order is in place, it’s important to comply with its terms. Failure to adhere to court orders can have legal consequences.
  8. The Children’s Court

    • Please note that you may also approach the Children’s Court for assistance. Their process is different from that of the High Court.

Need help?

Should you require assistance with a child custody dispute, whether you are the mother or the father, feel free to contact us.

Below is an example of a High Court Application.

          [caption id="attachment_11690" align="alignnone" width="677"]Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf - High Court Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf - High Court[/caption]       Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf - High Court [caption id="attachment_11693" align="alignnone" width="710"]Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf - High Court Child Custody Notice of Motion and Founding Affidavit – Advocate Abduroaf – High Court[/caption] Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf - High Court [video width="1210" height="1712" mp4="https://www.ourlawyer.co.za/wp-content/uploads/Child-Custody-High-Court-Application-Advocate-Muhammad-Abduroaf.mp4"][/video]  

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