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[caption id="attachment_10837" align="alignnone" width="654"]Relocation consent Court Order for minor child to Spain - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Spain – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Spain with my minor child. The other parent does not want my child to relocate to Spain. What can I do?

Spain 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 Spain, if a minor child will be joining that parent and also relocating to Spain, 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 Spain. Before we do so, let us list the various cities and towns in Spain to which you may want to relocate: Andalusia, Almería, Almería, Cádiz, Algeciras, Arcos de la Frontera, Cádiz, Chiclana de la Frontera, El Puerto de Santa María, Jerez de la Frontera, La Línea, Puerto Real, San Fernando, Sanlúcar de Barrameda, Córdoba, Bujalance, Cabra, Córdoba, Lucena, Montilla, Peñarroya-Pueblonuevo, Priego de Córdoba, Puente-Genil, Granada, Andújar, Baza, Granada, Guadix, Motril, Huelva, Huelva, Jaén, Jaén, Linares, Martos, Úbeda, Málaga, Antequera, Coín, Málaga, Melilla, Ronda, Sevilla, Alcalá de Guadaira, Carmona, Dos Hermanas, Ecija, Lebrija, Lora del Río, Marchena, Morón de la Frontera, Osuna, Sevilla, Utrera, Aragon, Huesca, Huesca, Jaca, Teruel, Teruel, Zaragoza, Zaragoza, Asturias, Avilés, Cabañaquinta, Cangas de Narcea, Covadonga, Gijón, Luarca, Mieres, Oviedo, Pola de Siero, San Martín del Rey Aurelio, Tineo, Villaviciosa, Balearic Islands, Palma, Maó, Basque Country, Álava, Vitoria-Gasteiz, Guipúzcoa, Donostia–San Sebastián, Eibar, Irun, Vizcaya, Barakaldo, Bilbao, Getxo, Guernica, Portugalete, Santurtzi, Sestao, Canary Islands, Las Palmas, Arucas, Las Palmas, Telde, Santa Cruz de Tenerife, La Orotava, Santa Cruz de Tenerife, Cantabria, Santander, Torrelavega, Castile–La Mancha, Albacete, Albacete, Hellín, Villarrobledo, Ciudad Real, Alcázar de San Juan, Almadén, Ciudad Real, Puertollano, Tomelloso, Valdepeñas, Cuenca, Cuenca, Guadalajara, Guadalajara, Toledo, Talavera de la Reina, Toledo, Castile–León, Ávila, Ávila, Burgos, Burgos, Miranda de Ebro, León, Astorga, León, Ponferrada, Palencia, Palencia, Salamanca, Ciudad Rodrigo, Salamanca, Segovia, San Ildefonso, Segovia, Soria, Soria, Valladolid, Simancas, Valladolid, Zamora, Toro, Zamora, Catalonia, Barcelona, Badalona, Barcelona, Cornellà, Granollers, L’Hospitalet de Llobregat, Manresa, Mataró, Reus, Sabadell, Santa Coloma de Gramenet, Terrassa, Vic, Vilanova i la Geltrú, Girona, Girona, Llívia, Lleida, Lleida, Tarragona, Tarragona, Tortosa, Ceuta (autonomous city), Extremadura, Badajoz, Almendralejo, Badajoz, Don Benito, Mérida, Villanueva de la Serena, Cáceres, Alcántara, Cáceres, Guadalupe, Plasencia, Trujillo, Galicia, A Coruña, A Coruña, Carballo, Ferrol, Ortigueira, Ribeira, Santiago de Compostela, Lugo, Lugo, Mondoñedo, Monforte de Lemos, Vilalba, Ourense, Ourense, Vigo, Vilagarcía de Arousa, Pontevedra, Pontevedra, Madrid, Alcalá de Henares, Aranjuez, El Escorial, Getafe, Madrid, Melilla, Murcia, Caravaca, Cartagena, Cieza, Jumilla, Lorca, Murcia, Yecla, Navarra, Funes, Pamplona, Roncesvalles, La Rioja, Calahorra, Logroño, Valencia, Alicante, Alcoy, Alicante, Elche, Elda, Orihuela, Villena, Castellón, Castellón de la Plana, Villarreal, Valencia, Alzira, Gandía, Requena, Sagunto, Sueca, Torrent, Valencia. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Spain-2041711)  

Why do I require the other parent’s Consent to relocate to Spain?

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 Spain. 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 Spain. Even if the minor child only wants to go for a short holiday to Spain, both guardians’ Consent would be required.

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

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 Spain. 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 Spain.

Mother’s Consent for relocation of the minor child to Spain

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 Spain, 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 Spain

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 Spain. 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 Spain.

Consent of unmarried fathers for the relocation of their minor children to Spain.

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 Spain?

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 Spain, 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 Spain, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10836" align="alignnone" width="667"]Relocation consent Court Order for minor child to Spain - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Spain – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10837" align="alignnone" width="667"]Relocation consent Court Order for minor child to Spain - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Spain – Advocate Muhammad Abduroaf[/caption]

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Child Maintenance and Support

https://www.ourlawyer.co.za/wp-content/uploads/Our-Lawyer-Consultation.gifEvery Child is entitled to have adequate child maintenance from his parents. This includes the provision of food, clothing, shelter, education and healthcare. These provisions are to be provided by both his or her mother and father. If one parent cannot afford any support, then other the parent would be responsible for the time being. However, support can still be claimed from the child’s maternal and paternal grandparents. What follows are some answers to a few questions on child maintenance.

How much is the basic rate or amount of child maintenance?

There is no basic rate for child maintenance. The amount depends on various factors, which includes the needs of the child, the income of the parents, as well as their personal expenses. There are many other factors as well. The law expects parents to contribute based on their means. Therefore, in principle, but not easily applied in practice, if a mother earns double of that the father, and has the same monthly expenses, she would pay double in child support. What is best is for parents to sit down and work out what is fair.

What is covered by child maintenance?

A vast amount of provisions is included in the concept of child support. These are not only necessities, it can be luxuries as well. This all depends on the standard of living of the parents, and what the child was accustomed to. This would even more apply if the parents were married to each other, had the child, and then separated. The law would want the child to continue with the standard of living he or she had before the separation, or divorce.

How do you determine the amount of child support?

Determining the amount to pay for child support is not an easy one. If things were simple, both parties would earn the same and have the same expenses. However, this is seldom the case. Furthermore, one should also look at the means of the parents, assets and liabilities. Therefore, if a parent does not earn much, but own an expensive piece of real estate, that would be taken into account when determining the amount, he or she should contribute. Once all the figures are on the table, a fair amount should be allocated.

When do I stop paying maintenance?

Child maintenance should be paid until the child is self-supporting or sufficient. Although the child becomes an adult at the age of eighteen, many at time, the child is still at school, studying, or trying to find a job. He or she may still claim maintenance from his or her parents. However, once the child becomes self-supporting, maintenance should stop. if there is a child maintenance order in place, such order should be set aside should the child be self-supporting.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.
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Frequently asked Child Custody and Guardianship Questions, answered by Adv. Muhammad Abduroaf, Advocate of the High Court of South Africa

Parents who are separated or having difficulties in their marriage or relationship often have questions regarding issues regarding child custody, care, visitation, and guardianship. Below are a few questions that Adv. Muhammad Abduroaf attempt to answer.

What is the most common child custody agreement?

The most common child custody agreement is for one parent to have primary care and for the other to have reasonable contact. That basically means the child would be cared for by one parent during the school week, and the other parent would have visitation rights every other weekend. Sometimes visitation would be during the week as well. Regarding school holidays, each parent would care for the child equally if possible. That would mean that the school holidays would be split in half. There are many variations to the above. However, the idea is that one parent would care for the child’s day-to-day needs and would be the first point of call for the child. For example, should the child fall ill at school, then the primary caregiver would be first contacted. That parent would also ensure that the child does their homework, attend sport, etc. The other parent may assist with schoolwork and assignments while caring for the child.

At what age can a child refuse visitation in South Africa?

Children need to listen to their parents. The opposite also applies. However, the difference is that parents know what is best for their children. Once the child turns 18 and is an adult, they can decide when and with whom they want to have contact. If, however, a child is afraid to have contact with a parent, then in such a case, the matter needs to be looked into. It may be best that the child sees a social worker or psychologist to determine the root of the problem and work from there.

How does guardianship work in South Africa?

Guardianship refers to legal matters concerning a child’s life. For example, a child’s legal guardian would consent to a child obtaining a passport or buying a house. Consent is also required for a child to undergo specific medical procedures and international travel. As you can see, guardianship has nothing to do with the visitation of a child. Therefore, a parent can have visitation rights but no guardianship rights.

What do judges look for in child custody cases in South Africa?

In all matters concerning children, the court or the judge is only concerned with what is in the child’s best interest, and not what is in the parent’s best interest. Therefore, whenever a judge has to decide regarding care, contact or anything related to the well-being of the minor child, it needs to make it based on what it believes is in the child’s best interests.

Are fathers entitled to 50/50 custody?

Fathers and mothers are entitled to 50/50 custody if the facts allow it. 50/50 is also sometimes referred to as shared care. If 50/50 is in the child’s best interests, the court will make such an order. If, for example, a parent lives far away from the child’s school, and that parent also needs to be at work very early, it would not make sense for that parent to have shared care over the minor child.

What is a realistic custody agreement?

A realistic custody agreement is one that would work for your specific family. Each family is different; therefore, what would work for one family would not necessarily work for another. Some parents work from home, and others work abroad. Furthermore, some parents are unable to assist children with schoolwork. Therefore, whatever custody agreement would work and be in the child’s best interests is best.

At what age will a judge listen to a child in South Africa?

If the child is mature enough, and there is a need for it, the court would listen to the child. However, usually, it depends on other experts’ interactions with the child—for example, the Office of the Family Advocate or a social worker who would provide a report.

How can a mother lose custody in South Africa?

If the mother has custody or primary care over the minor child, she can lose custody if she cannot be the primary caregiver. She may also lose custody if the other parent is better equipped to care for the minor child. For example, the mother now must work long hours and is away at work more often. The court may decide that it is best for the father to care for the minor child if he can do so.

Is South Africa a 50/50 custody State?

South Africa does not follow the 50/50 custody principle, and it makes a custody order based on all the information before it and on what is in the child’s best interests.

What is considered an unfit parent in South Africa?

An unfit parent neglects a child. Not everyone has the same income or wealth, so a parent who cannot purchase everything the child wants is not seen as unfit. However, if that parent puts the child in harm’s way or neglects the child, that parent would be seen as an unfit parent.

How do you win a custody battle with a narcissist?

Whether or not the other parent is a narcissist, the principles applicable to winning a child custody case would remain the same. It would help if you focused on the child’s best interests and nothing else. The court would pick up that the other parent is a narcissist. However, that does not mean you will win your case. A narcissist that can care well for the child should care for the child. Therefore, focus on aspects showing that you can care better for the child.

What access do fathers usually get?

Historically, the father usually received reasonable contact, which usually entailed contact every second weekend, on special days and half the holidays. The law and society have evolved so that many fathers are primary caregivers, and the mothers are the ones who receive reasonable contact. No matter what the gender of the parent is, the law looks at what is best for the child concerned.

How do you calculate child custody?

You would calculate child custody by the amount of time a parent would spend with a child during the month. For example, if a parent has contact with a child every second weekend, that would mean that the parent cares for the child 4 to 5 days a month.

How can I gain full custody of my child?

Any parent can gain full custody of their child if they can prove it would be in their best interests. No court would give full custody to a parent who cannot care well for the child. The law does not look at the amount of money you have as the court can always order the other parent to pay more child support. [caption id="attachment_10745" align="alignnone" width="300"]Best Attorneys, Advocates, lawyers to assist you in your Court Custody matter. When is the best time to get them involved in your case? Adv. Muhammad Abduroaf[/caption]

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