Relocation minor child South Africa Advocate Abduroaf Saudi Arabia Riyadh

Posted on 11 February 2025 by Telelaw

What parents need to know should they wish to relocate from South Africa to the United Kingdom, Australia, United States, New Zealand or Canada with their minor child
We often receive queries and requests for advice and assistance on issues relating to relocation to another country with a minor child. Related topics relate to the issue of consent for the application for a Passport for a minor child. Sometimes the issue of changing the child’s surname comes into the picture. Of course, if parents are in agreement regarding the issue of relocation and a passport application, all should go well. You may want to see a lawyer to formalise the arrangement to avoid any issues whilst the parent and the child lives abroad. However, if there are potential complications or issues of consent not being forthcoming, then this article would be of assistance.

Why relocate, or emigrate from South Africa to the United Kingdom, Australia, United States, New Zealand, Canada, or elsewhere?

In no particular order, you would find someone relocating from South Africa to the following destinations: The United Kingdom, Australia, United States, New Zealand, Canada, Angola, Botswana, Chile, Zimbabwe, Germany, Netherlands, Swaziland, Israel, Portugal, Mozambique, Ireland, Malawi, Switzerland. Namibia and Greece. The reasons for the relocation vary. For some, it is for a better life, work, or to live with a new spouse or partner. For others, it may just be to explore the world. If there are children involved, then relocation won’t be that easy. Especially so if both parents live in South Africa, and the other wants to relocate with the minor child. In other words, parents who have parental responsibilities and rights need to be considered.

Parental Responsibilities and rights of parents (Applicable to South Africa)

Generally, both parents would have parental rights and responsibilities over a child. We say generally, as this would not always be the case. Mothers automatically have full parental responsibilities and rights over the child. If a parent has parental rights and responsibilities over a minor child; this could entail the right and responsibility to care for the child, have contact with the child and at the same time to act as guardian for the child. This article would deal with the issue of guardianship. If the parties were married the father will automatically have full parental rights and responsibilities over a minor child born from the marriage. If the parties were not married then in short, if the father was involved in the child’s life, he can acquire full parental rights and responsibilities over the minor child. Involvement entails having regular contact with the child and paying maintenance if he can afford so. If the mother refuses to let the father have contact, despite him making a concerted effort, or he cannot afford to pay maintenance, that would be considered.

The parental responsibilities and rights of guardianship (Applicable to South Africa)

Guardians of a minor child have specific rights and responsibilities. Under certain circumstances, both the minor child’s guardians must consent for certain matters. In relation to this article, both guardians must consent for the departure and removal of the minor child from South Africa, and the application for a passport for the minor child. The same would apply for a surname change.

What to do if a parent does not want to consent for the minor child relocating with a parent overseas, for example, Germany?

Before a parent should consider relocating, he or she must first ensure that the child’s best interests would be upheld should the relocation take place. Therefore, the parent should ensure that all the following are attended to:

A decent place to live overseas

For the other parent (the one remaining in South Africa), and the court to properly consider your wish to relocate with the minor child, it is important that there is a decent place for the minor child to live, albeit very modest. It would be difficult to convince the court to allow you to relocate with the child if you intend to find accommodation only once you arrive overseas. Often a parent would live with a relative or friend overseas. In other cases, the employer would arrange for accommodation.

Being able to maintain yourself and the child after you relocated

We doubt that any parent would agree that you may relocate with the child to a country, for example, Canada and you would have to look for work only when you arrive there. This scenario would most probably apply to someone who has dual citizenship or is already a citizen of the country he or she intends to relocate to. But in this case, he or she wants to take the minor child with him or her. Arrangements would have to be made in South Africa. Obviously, one would require a work permit to remain in the country for an extended period of time. If you are relocating on a spousal visa, things would be different. At the end of the day, the court would have to be satisfied that proper arrangements are in place prior to consenting to the relocation when the other parent refuses.

Schooling for the minor child

When the minor child relocates, he or she would have to be enrolled in a school, let’s say in New York. If the child is a toddler, this would not necessarily be an issue. However, if the child is at school-going age, then arrangements would have to be made in South Africa, prior to considering the relocation.

Other factors to consider

There are various further factors to consider when dealing with relocation with a minor child. Some of them relate to how contact would be exercised while the minor child is overseas. Basically, each case is different. However, all relevant factors need to be presented to the court.

When to approach the Court

Once you have done your homework and made the necessary arrangements, you should finally request the consent of the other parent to relocate. If consent is not provided, then you would need to approach the relevant Court. An application would have to be made, with a Notice of Motion, and Founding Affidavit. The documents would also be served on the other parent who would have an opportunity to give their version. At the end of the day, the court would decide what is best for the child and not the parents concerned. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

The Court Order says my minor child’s mother has custody, but my daughter primarily lived with me since she was a toddler. What can I do to legalise the situation? The mother is now demanding that the order now be followed – 5 years later.
[video width="1920" height="1080" mp4="https://www.ourlawyer.co.za/wp-content/uploads/Child-Custody-Visitation-and-Contact.mp4"][/video] At the time of a divorce or separation, the parents of a minor child would usually agree on where the minor child would primarily reside. If they cannot come to an agreement, the Court would make that decision for them. If the parents were never married, one of them may have approached the Court. This is to deal with their parental responsibilities and rights.
Parents not following Court Order
What often happens is a Court would order that one parent has primary care over a minor child, but that specific parent does not take on that responsibility. In other words, the minor child would live primarily with the parent who does not have custody. The parent who has custody would then only occasionally have contact with the minor child. This is so despite the Court Order stating that the minor child should primarily live with him or her. This becomes problematic, as the Court Order says one thing, but the parents are doing the opposite.

Parenting disagreements despite a Court Order

Should the parents come to a disagreement in the future, the parent who has primary care in terms of a Court Order may demand to exercise his or her rights as the primary caregiver. The parent who has primary care in terms of the Court Order may even threaten to take legal action to enforce the Order. This situation may be problematic as the minor child may have been living for a very long time with the non-custodial parent, enrolled in the nearby school, have friends there, etc. This would all be uprooted should the order now be followed many years later. The minor child would have to be enrolled in a new school, and furthermore, the new home may not be adequate for the minor child’s needs.

The Child Custody Court Order and its compliance

Once a Court makes an order, it should be complied with. Nothing less applies in the case of a Court order regarding a minor child. Once the minor child becomes an adult, the order basically falls away, unless they are provisions that still lives on. For example, a provision that states that child maintenance should be paid to the mother until the minor child turns 21 or is self-supporting, and so on. But should the child be a minor (under the age of 18 years old), the parental responsibilities and rights as outlined in the Court order would usually apply. Therefore, unless the Court order lapsed, it needs to be complied with.

What can a parent do under the latter situation?

The first port of call would be to have a look at the Court order and see what it obliges the parents to do in this situation. This can either be facilitation or mediation. If that fails, or no such provision exists, then making an application to the Court to vary the Order would be the appropriate remedy. This basically entails filing a Notice of Motion, attached to it, a Founding Affidavit. The Notice of Motion will state what you want. The Founding Affidavit would state the facts substantiating the relief you are looking for.

The relief sought

The relief a parent may want from the Court would be that a certain clause in the Court Order is varied. It should state that primary care is awarded to the father (or the mother as the case may be). It would further outline what contact rights the parent who had primary care in terms of the order would have. Usually, it would follow what the parties have been exercising in the past.

What would the Court decide regarding custody?

[caption id="attachment_8258" align="alignleft" width="476"]

Child Custody Visitation and Contact[/caption] The Court is the upper guardian of all minor children within its jurisdiction. It, therefore, can override the wishes of the parents. However, the Court has to comply with the Constitution and the Children’s Act. Both pieces of legislation say that the minor child’s best interests must be upheld when it comes to these types of issues. Therefore, the Court would look at all the relevant facts. It would then make a decision as to what is best for the minor child concerned. The Court would look at the Order and whether it has been complied with. Thereafter it would decide whether a change to it would be warranted. The Court is also not obliged to make an order based on what the parents in the case want. It would make a decision as to what it believes is in the minor child’s best interests.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

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