Child Maintenance Court – What do you have to know to win. Tips and Tricks

[caption id="attachment_8401" align="alignleft" width="640"]Child Maintenance Child Custody of Parents[/caption]

advice-child-maintenance-child-custody-divorce

Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance. Read on above a Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.  

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses. Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.  

The maintenance enquiry before a maintenance officer

The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

Denial of paternity

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

Role of the maintenance officer

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.  

The maintenance investigator

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

advice-child-maintenance-child-custody-divorce

The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

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If you find any of our articles and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.            

Child Maintenance Court – What do you have to know to win. Tips and Tricks

Child Maintenance
Child Custody of Parents

advice-child-maintenance-child-custody-divorce

Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance.

Read on above a Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents.

According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”

Furthermore, the duty is not discharged where one parent earns substantially more than the other.

According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following:

“(i) that the duty of supporting a child is an obligation which the parents have incurred jointly;

(ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and

(iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

(b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.”

Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer.

Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.

 

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court.

Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry.

Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses.

Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.

 

The maintenance enquiry before a maintenance officer

The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

Denial of paternity

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity.

Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

Role of the maintenance officer

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance.

The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests.

Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.

 

The maintenance investigator

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.”

Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to:

“gather information concerning-

(i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable;

(ii) the financial position of any person affected by such liability; or

(iii) any other matter which may be relevant concerning the subject of such complaint; or

(f) gather such information as may be relevant concerning a request referred to in subsection (1) (c).

Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

advice-child-maintenance-child-custody-divorce

The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry.

Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award.

There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire.

Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

Sharing is Caring

If you find any of our articles and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.

 

 

 

 

 

 

Related Post

Relocation with my minor child to the United States of America, New York (Consent and Refusal) – Advocate Muhammad Abduroaf The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. Relocation of your minor child to New York, the United States of America If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor child or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Cape Town or Johannesburg, and you want to relocate to Miami or New York, the United States of America, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent does not agree to the relocation. What about Passport Consent to travel or relocate to New York, the United States of America? The same applies when it comes to your minor child applying for a South African passport to relocate to the United States of America, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application. In this regard, both parents have to be at the Department of Home Affairs when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to co-operate with the passport application. What are the steps to follow when I want to relocate to New York, the United States of America with my minor child? To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa. What can I do if the other parent does not want to consent to the minor child’s relocation to the United States of America? If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to New York, the United States of America, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to New York, the United States of America. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate, the Court would make it possible despite the issue of consent. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to New York, the United States of America? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to New York, the United States of America – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to New York, the United States of America, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessarily to make the relocation of the minor child possible.

[caption id="attachment_10843" align="alignnone" width="671"]Relocation consent Court Order for minor child to the United States of America- USA - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to the United States of America- USA – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to the United States of America (USA) with my minor child. The other parent does not want my child to relocate to the United States of America. What can I do?

The United States of America is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to the United States of America, if a minor child will be joining that parent and also relocating to the United States of America, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to the United States of America. Before we do so, let us list the various cities and towns in the United States of America to which you may want to relocate: Alabama, Alexander City, Andalusia, Anniston, Athens, Atmore, Auburn, Bessemer, Birmingham, Chickasaw, Clanton, Cullman, Decatur, Demopolis, Dothan, Enterprise, Eufaula, Florence, Fort Payne, Gadsden, Greenville, Guntersville, Huntsville, Jasper, Marion, Mobile, Montgomery, Opelika, Ozark, Phenix City, Prichard, Scottsboro, Selma, Sheffield, Sylacauga, Talladega, Troy, Tuscaloosa, Tuscumbia, Tuskegee, Alaska, Anchorage, Cordova, Fairbanks, Haines, Homer, Juneau, Ketchikan, Kodiak, Kotzebue, Nome, Palmer, Seward, Sitka, Skagway, Valdez, Arizona, Ajo, Avondale, Bisbee, Casa Grande, Chandler, Clifton, Douglas, Flagstaff, Florence, Gila Bend, Glendale, Globe, Kingman, Lake Havasu City, Mesa, Nogales, Oraibi, Phoenix, Prescott, Scottsdale, Sierra Vista, Tempe, Tombstone, Tucson, Walpi, Window Rock, Winslow, Yuma, Arkansas, Arkadelphia, Arkansas Post, Batesville, Benton, Blytheville, Camden, Conway, Crossett, El Dorado, Fayetteville, Forrest City, Fort Smith, Harrison, Helena, Hope, Hot Springs, Jacksonville, Jonesboro, Little Rock, Magnolia, Morrilton, Newport, North Little Rock, Osceola, Pine Bluff, Rogers, Searcy, Stuttgart, Van Buren, West Memphis, California, Alameda, Alhambra, Anaheim, Antioch, Arcadia, Bakersfield, Barstow, Belmont, Berkeley, Beverly Hills, Brea, Buena Park, Burbank, Calexico, Calistoga, Carlsbad, Carmel, Chico, Chula Vista, Claremont, Compton, Concord, Corona, Coronado, Costa Mesa, Culver City, Daly City, Davis, Downey, El Centro, El Cerrito, El Monte, Escondido, Eureka, Fairfield, Fontana, Fremont, Fresno, Fullerton, Garden Grove, Glendale, Hayward, Hollywood, Huntington Beach, Indio, Inglewood, Irvine, La Habra, Laguna Beach, Lancaster, Livermore, Lodi, Lompoc, Long Beach, Los Angeles, Malibu, Martinez, Marysville, Menlo Park, Merced, Modesto, Monterey, Mountain View, Napa, Needles, Newport Beach, Norwalk, Novato, Oakland, Oceanside, Ojai, Ontario, Orange, Oroville, Oxnard, Pacific Grove, Palm Springs, Palmdale, Palo Alto, Pasadena, Petaluma, Pomona, Port Hueneme, Rancho Cucamonga, Red Bluff, Redding, Redlands, Redondo Beach, Redwood City, Richmond, Riverside, Roseville, Sacramento, Salinas, San Bernardino, San Clemente, San Diego, San Fernando, San Francisco, San Gabriel, San Jose, San Juan Capistrano, San Leandro, San Luis Obispo, San Marino, San Mateo, San Pedro, San Rafael, San Simeon, Santa Ana, Santa Barbara, Santa Clara, Santa Clarita, Santa Cruz, Santa Monica, Santa Rosa, Sausalito, Simi Valley, Sonoma, South San Francisco, Stockton, Sunnyvale, Susanville, Thousand Oaks, Torrance, Turlock, Ukiah, Vallejo, Ventura, Victorville, Visalia, Walnut Creek, Watts, West Covina, Whittier, Woodland, Yorba Linda, Yuba City, Colorado, Alamosa, Aspen, Aurora, Boulder, Breckenridge, Brighton, Canon City, Central City, Climax, Colorado Springs, Cortez, Cripple Creek, Denver, Durango, Englewood, Estes Park, Fort Collins, Fort Morgan, Georgetown, Glenwood Springs, Golden, Grand Junction, Greeley, Gunnison, La Junta, Leadville, Littleton, Longmont, Loveland, Montrose, Ouray, Pagosa Springs, Pueblo, Silverton, Steamboat Springs, Sterling, Telluride, Trinidad, Vail, Walsenburg, Westminster, Connecticut, Ansonia, Berlin, Bloomfield, Branford, Bridgeport, Bristol, Coventry, Danbury, Darien, Derby, East Hartford, East Haven, Enfield, Fairfield, Farmington, Greenwich, Groton, Guilford, Hamden, Hartford, Lebanon, Litchfield, Manchester, Mansfield, Meriden, Middletown, Milford, Mystic, Naugatuck, New Britain, New Haven, New London, North Haven, Norwalk, Norwich, Old Saybrook, Orange, Seymour, Shelton, Simsbury, Southington, Stamford, Stonington, Stratford, Torrington, Wallingford, Waterbury, Waterford, Watertown, West Hartford, West Haven, Westport, Wethersfield, Willimantic, Windham, Windsor, Windsor Locks, Winsted, Delaware, Dover, Lewes, Milford, New Castle, Newark, Smyrna, Wilmington, Florida, Apalachicola, Bartow, Belle Glade, Boca Raton, Bradenton, Cape Coral, Clearwater, Cocoa Beach, Cocoa-Rockledge, Coral Gables, Daytona Beach, De Land, Deerfield Beach, Delray Beach, Fernandina Beach, Fort Lauderdale, Fort Myers, Fort Pierce, Fort Walton Beach, Gainesville, Hallandale Beach, Hialeah, Hollywood, Homestead, Jacksonville, Key West, Lake City, Lake Wales, Lakeland, Largo, Melbourne, Miami, Miami Beach, Naples, New Smyrna Beach, Ocala, Orlando, Ormond Beach, Palatka, Palm Bay, Palm Beach, Panama City, Pensacola, Pompano Beach, Saint Augustine, Saint Petersburg, Sanford, Sarasota, Sebring, Tallahassee, Tampa, Tarpon Springs, Titusville, Venice, West Palm Beach, White Springs, Winter Haven, Winter Park, Georgia, Albany, Americus, Andersonville, Athens, Atlanta, Augusta, Bainbridge, Blairsville, Brunswick, Calhoun, Carrollton, Columbus, Dahlonega, Dalton, Darien, Decatur, Douglas, East Point, Fitzgerald, Fort Valley, Gainesville, La Grange, Macon, Marietta, Milledgeville, Plains, Rome, Savannah, Toccoa, Valdosta, Warm Springs, Warner Robins, Washington, Waycross, Hawaii, Hanalei, Hilo, Honaunau, Honolulu, Kahului, Kaneohe, Kapaa, Kawaihae, Lahaina, Laie, Wahiawa, Wailuku, Waimea, Idaho, Blackfoot, Boise, Bonners Ferry, Caldwell, Coeur d’Alene, Idaho City, Idaho Falls, Kellogg, Lewiston, Moscow, Nampa, Pocatello, Priest River, Rexburg, Sun Valley, Twin Falls, Illinois, Alton, Arlington Heights, Arthur, Aurora, Belleville, Belvidere, Bloomington, Brookfield, Cahokia, Cairo, Calumet City, Canton, Carbondale, Carlinville, Carthage, Centralia, Champaign, Charleston, Chester, Chicago, Chicago Heights, Cicero, Collinsville, Danville, Decatur, DeKalb, Des Plaines, Dixon, East Moline, East Saint Louis, Effingham, Elgin, Elmhurst, Evanston, Freeport, Galena, Galesburg, Glen Ellyn, Glenview, Granite City, Harrisburg, Herrin, Highland Park, Jacksonville, Joliet, Kankakee, Kaskaskia, Kewanee, La Salle, Lake Forest, Libertyville, Lincoln, Lisle, Lombard, Macomb, Mattoon, Moline, Monmouth, Mount Vernon, Mundelein, Naperville, Nauvoo, Normal, North Chicago, Oak Park, Oregon, Ottawa, Palatine, Park Forest, Park Ridge, Pekin, Peoria, Petersburg, Pontiac, Quincy, Rantoul, River Forest, Rock Island, Rockford, Salem, Shawneetown, Skokie, South Holland, Springfield, Streator, Summit, Urbana, Vandalia, Virden, Waukegan, Wheaton, Wilmette, Winnetka, Wood River, Zion, Indiana, Anderson, Bedford, Bloomington, Columbus, Connersville, Corydon, Crawfordsville, East Chicago, Elkhart, Elwood, Evansville, Fort Wayne, French Lick, Gary, Geneva, Goshen, Greenfield, Hammond, Hobart, Huntington, Indianapolis, Jeffersonville, Kokomo, Lafayette, Madison, Marion, Michigan City, Mishawaka, Muncie, Nappanee, Nashville, New Albany, New Castle, New Harmony, Peru, Plymouth, Richmond, Santa Claus, Shelbyville, South Bend, Terre Haute, Valparaiso, Vincennes, Wabash, West Lafayette, Iowa, Amana Colonies, Ames, Boone, Burlington, Cedar Falls, Cedar Rapids, Charles City, Cherokee, Clinton, Council Bluffs, Davenport, Des Moines, Dubuque, Estherville, Fairfield, Fort Dodge, Grinnell, Indianola, Iowa City, Keokuk, Mason City, Mount Pleasant, Muscatine, Newton, Oskaloosa, Ottumwa, Sioux City, Waterloo, Webster City, West Des Moines, Kansas, Abilene, Arkansas City, Atchison, Chanute, Coffeyville, Council Grove, Dodge City, Emporia, Fort Scott, Garden City, Great Bend, Hays, Hutchinson, Independence, Junction City, Kansas City, Lawrence, Leavenworth, Liberal, Manhattan, McPherson, Medicine Lodge, Newton, Olathe, Osawatomie, Ottawa, Overland Park, Pittsburg, Salina, Shawnee, Smith Center, Topeka, Wichita, Kentucky, Ashland, Barbourville, Bardstown, Berea, Boonesborough, Bowling Green, Campbellsville, Covington, Danville, Elizabethtown, Frankfort, Harlan, Harrodsburg, Hazard, Henderson, Hodgenville, Hopkinsville, Lexington, Louisville, Mayfield, Maysville, Middlesboro, Newport, Owensboro, Paducah, Paris, Richmond, Louisiana, Abbeville, Alexandria, Bastrop, Baton Rouge, Bogalusa, Bossier City, Gretna, Houma, Lafayette, Lake Charles, Monroe, Morgan City, Natchitoches, New Iberia, New Orleans, Opelousas, Ruston, Saint Martinville, Shreveport, Thibodaux, Maine, Auburn, Augusta, Bangor, Bar Harbor, Bath, Belfast, Biddeford, Boothbay Harbor, Brunswick, Calais, Caribou, Castine, Eastport, Ellsworth, Farmington, Fort Kent, Gardiner, Houlton, Kennebunkport, Kittery, Lewiston, Lubec, Machias, Orono, Portland, Presque Isle, Rockland, Rumford, Saco, Scarborough, Waterville, York, Maryland, Aberdeen, Annapolis, Baltimore, Bethesda-Chevy Chase, Bowie, Cambridge, Catonsville, College Park, Columbia, Cumberland, Easton, Elkton, Emmitsburg, Frederick, Greenbelt, Hagerstown, Hyattsville, Laurel, Oakland, Ocean City, Rockville, Saint Marys City, Salisbury, Silver Spring, Takoma Park, Towson, Westminster, Massachusetts, Abington, Adams, Amesbury, Amherst, Andover, Arlington, Athol, Attleboro, Barnstable, Bedford, Beverly, Boston, Bourne, Braintree, Brockton, Brookline, Cambridge, Canton, Charlestown, Chelmsford, Chelsea, Chicopee, Clinton, Cohasset, Concord, Danvers, Dartmouth, Dedham, Dennis, Duxbury, Eastham, Edgartown, Everett, Fairhaven, Fall River, Falmouth, Fitchburg, Framingham, Gloucester, Great Barrington, Greenfield, Groton, Harwich, Haverhill, Hingham, Holyoke, Hyannis, Ipswich, Lawrence, Lenox, Leominster, Lexington, Lowell, Ludlow, Lynn, Malden, Marblehead, Marlborough, Medford, Milton, Nahant, Natick, New Bedford, Newburyport, Newton, North Adams, Northampton, Norton, Norwood, Peabody, Pittsfield, Plymouth, Provincetown, Quincy, Randolph, Revere, Salem, Sandwich, Saugus, Somerville, South Hadley, Springfield, Stockbridge, Stoughton, Sturbridge, Sudbury, Taunton, Tewksbury, Truro, Watertown, Webster, Wellesley, Wellfleet, West Bridgewater, West Springfield, Westfield, Weymouth, Whitman, Williamstown, Woburn, Woods Hole, Worcester, Michigan, Adrian, Alma, Ann Arbor, Battle Creek, Bay City, Benton 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Biloxi, Canton, Clarksdale, Columbia, Columbus, Corinth, Greenville, Greenwood, Grenada, Gulfport, Hattiesburg, Holly Springs, Jackson, Laurel, Meridian, Natchez, Ocean Springs, Oxford, Pascagoula, Pass Christian, Philadelphia, Port Gibson, Starkville, Tupelo, Vicksburg, West Point, Yazoo City, Missouri, Boonville, Branson, Cape Girardeau, Carthage, Chillicothe, Clayton, Columbia, Excelsior Springs, Ferguson, Florissant, Fulton, Hannibal, Independence, Jefferson City, Joplin, Kansas City, Kirksville, Lamar, Lebanon, Lexington, Maryville, Mexico, Monett, Neosho, New Madrid, Rolla, Saint Charles, Saint Joseph, Saint Louis, Sainte Genevieve, Salem, Sedalia, Springfield, Warrensburg, West Plains, Montana, Anaconda, Billings, Bozeman, Butte, Dillon, Fort Benton, Glendive, Great Falls, Havre, Helena, Kalispell, Lewistown, Livingston, Miles City, Missoula, Virginia City, Nebraska, Beatrice, Bellevue, Boys Town, Chadron, Columbus, Fremont, Grand Island, Hastings, Kearney, Lincoln, McCook, 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Galveston, Garland, Goliad, Greenville, Harlingen, Houston, Huntsville, Irving, Johnson City, Kilgore, Killeen, Kingsville, Laredo, Longview, Lubbock, Lufkin, Marshall, McAllen, McKinney, Mesquite, Midland, Mission, Nacogdoches, New Braunfels, Odessa, Orange, Pampa, Paris, Pasadena, Pecos, Pharr, Plainview, Plano, Port Arthur, Port Lavaca, Richardson, San Angelo, San Antonio, San Felipe, San Marcos, Sherman, Sweetwater, Temple, Texarkana, Texas City, Tyler, Uvalde, Victoria, Waco, Weatherford, Wichita Falls, Ysleta, Utah, Alta, American Fork, Bountiful, Brigham City, Cedar City, Clearfield, Delta, Fillmore, Green River, Heber City, Kanab, Layton, Lehi, Logan, Manti, Moab, Monticello, Murray, Nephi, Ogden, Orderville, Orem, Panguitch, Park City, Payson, Price, Provo, Saint George, Salt Lake City, Spanish Fork, Springville, Tooele, Vernal, Vermont, Barre, Bellows Falls, Bennington, Brattleboro, Burlington, Essex, Manchester, Middlebury, Montpelier, Newport, Plymouth, Rutland, Saint Albans, Saint Johnsbury, Sharon, Winooski, Virginia, Abingdon, Alexandria, Bristol, Charlottesville, Chesapeake, Danville, Fairfax, Falls Church, Fredericksburg, Hampton, Hanover, Hopewell, Lexington, Lynchburg, Manassas, Martinsville, New Market, Newport News, Norfolk, Petersburg, Portsmouth, Reston, Richmond, Roanoke, Staunton, Suffolk, Virginia Beach, Waynesboro, Williamsburg, Winchester, Washington, Aberdeen, Anacortes, Auburn, Bellevue, Bellingham, Bremerton, Centralia, Coulee Dam, Coupeville, Ellensburg, Ephrata, Everett, Hoquiam, Kelso, Kennewick, Longview, Moses Lake, Oak Harbor, Olympia, Pasco, Point Roberts, Port Angeles, Pullman, Puyallup, Redmond, Renton, Richland, Seattle, Spokane, Tacoma, Vancouver, Walla Walla, Wenatchee, Yakima, West Virginia, Bath, Beckley, Bluefield, Buckhannon, Charles Town, Charleston, Clarksburg, Elkins, Fairmont, Grafton, Harpers Ferry, Hillsboro, Hinton, Huntington, Keyser, Lewisburg, Logan, Martinsburg, Morgantown, Moundsville, New Martinsville, Parkersburg, Philippi, Point Pleasant, Princeton, Romney, Shepherdstown, South Charleston, Summersville, Weirton, Welch, Wellsburg, Weston, Wheeling, White Sulphur Springs, Williamson, Wisconsin, Appleton, Ashland, Baraboo, Belmont, Beloit, Eau Claire, Fond du Lac, Green Bay, Hayward, Janesville, Kenosha, La Crosse, Lake Geneva, Madison, Manitowoc, Marinette, Menasha, Milwaukee, Neenah, New Glarus, Oconto, Oshkosh, Peshtigo, Portage, Prairie du Chien, Racine, Rhinelander, Ripon, Sheboygan, Spring Green, Stevens Point, Sturgeon Bay, Superior, Waukesha, Wausau, Wauwatosa, West Allis, West Bend, Wisconsin Dells, Wyoming, Buffalo, Casper, Cheyenne, Cody, Douglas, Evanston, Gillette, Green River, Jackson, Lander, Laramie, Newcastle, Powell, Rawlins, Riverton, Rock Springs, Sheridan, Ten Sleep, Thermopolis, Torrington, Worland. (https://www.britannica.com/topic/list-of-cities-and-towns-in-the-United-States-2023068)  

Why do I require the other parent’s Consent to relocate to the United States of America?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to the United States of America. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (1) A person may have either full or specific parental responsibilities and rights in respect of a child.  (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-  (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child.  (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-  (a) administer and safeguard the child’s property and property interests;  (b) assist or represent the child in administrative, contractual and other legal matters; or  (c) give or refuse any consent required by law in respect of the child, including-  (i) consent to the child’s marriage;  (ii) consent to the child’s adoption;  (iii) consent to the child’s departure or removal from the Republic;  (iv) consent to the child’s application for a passport; and  (v) consent to the alienation or encumbrance of any immovable property of the child.  (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to the United States of America. Even if the minor child only wants to go for a short holiday to the United States of America, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to the United States of America?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to the United States of America. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to the United States of America.

Mother’s Consent for relocation of the minor child to the United States of America

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to the United States of America, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to the United States of America

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to the United States of America. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to the United States of America.

Consent of unmarried fathers for the relocation of their minor children to the United States of America.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-  (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or  (b) if he, regardless of whether he has lived or is living with the mother-  (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;  (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and  (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.  (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.  (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.  (b) Any party to the mediation may have the outcome  of the mediation reviewed by a court.  (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to the United States of America?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to the United States of America, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to the United States of America, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10842" align="alignnone" width="672"]Relocation consent Court Order for minor child to the United States of America- USA - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to the United States of America- USA – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10843" align="alignnone" width="660"]Relocation consent Court Order for minor child to the United States of America- USA - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to the United States of America- USA – Advocate Muhammad Abduroaf[/caption]  

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