Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Pretoria Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Pretoria or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Pretoria. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Pretoria or any other city in South Africa.

What to do before visiting the Pretoria Children’s Court

Before you approach the Children’s Court in Pretoria, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Pretoria has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Pretoria Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Pretoria Children’s Court

The Pretoria Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Pretoria Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Pretoria Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Pretoria.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Pretoria Children’s Court

Once you complete the Form A and submit it to the Clerk of the Pretoria Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Pretoria Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Pretoria Children’s Court

Once the Pretoria Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Pretoria Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Pretoria, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Pretoria Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Pretoria or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Pretoria. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Pretoria or any other city in South Africa.

What to do before visiting the Pretoria Children’s Court

Before you approach the Children’s Court in Pretoria, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Pretoria has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Pretoria Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Pretoria Children’s Court

The Pretoria Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Pretoria Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Pretoria Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Pretoria.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Pretoria Children’s Court

Once you complete the Form A and submit it to the Clerk of the Pretoria Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Pretoria Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Pretoria Children’s Court

Once the Pretoria Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Pretoria Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Pretoria, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Related Post

What all South African expatriates (expats) should know when it comes to family law matters connected to their homeland – Divorce – Custody – Maintenance

In most countries around the world, you would find South African expatriates. They are either living in another country due to work, or other family responsibilities. Whatever the reason being for living abroad, they still consider themselves South Africans, and South Africa is their home. When someone leaves South Africa to work in another country, he or she may still have a very strong connection with South Africa from a family legal point of view. He or she may have children or a spouse still living in South Africa.  Due to the connection to South Africa, various legal issues may arise. One of those issues could possibly be wanting to divorce the spouse living in South Africa or to have more visitation or access rights to the child living in South Africa. Then there is the possibility of wishing to claim maintenance from a spouse living in South Africa while the child is living abroad with the expatriate parent.

The scope of this article in relation to South African expatriates

This article will deal with three important legal aspects, the first is that of a divorce, the second is that of child custody or guardianship disputes, and the third is that of claiming maintenance from a parent in South Africa.

Knowing your rights and the law when it comes to marriage, children and divorce

Not all expatriates of South Africa know their rights in relation to family law relevant to South Africa. He or she may not know how to divorce a spouse living in South Africa or how to claim maintenance from a parent who still lives in South Africa.  The South African expatriate may then decide not to do anything and wait until he or she returns to South Africa. This may be fine if it only relates to the issue of a divorce. But it may be problematic should it relate to issues regarding child contact and child maintenance.

Family legal issues for South African expatriates

If the spouse who expatriates to a distant country wishes to marry someone else there while still being married to somebody in South Africa, such a second marriage cannot take place. The obvious reason for that is that he or she is still married to somebody in South Africa. Therefore, he or she needs to look into the possibility of getting divorced from the spouse living in South Africa while he or she is still an expatriate in a different country.

Divorcing someone living in South Africa while you are living abroad

For a South African Court to divorce a couple, it has to have jurisdiction over the matter or one of the spouses. Not to complicate matters, basically one of the spouses has to be living in its area of jurisdiction for the divorce court to divorce a couple.  Therefore, notwithstanding a spouse living abroad, he or she may still Institute divorce proceedings if the other spouse lives in South Africa. The opposite also applies. For example, if a spouse lives in South Africa and wishes to divorce his or her spouse who lives abroad, the divorce court in South Africa can still divorce the couple.

Uncontested divorces are best when it comes to expatriates

It would be advisable that the parties agree on getting divorced before instituting divorce proceedings. The reason for saying so is that if the divorce becomes contested and both parties are living in different countries, things can become messy for both, and very expensive for the expatriate. However, if the parties cannot come to an agreement regarding the divorce, one of them have to institute divorce proceedings. As stated, such proceedings may be instituted in South Africa notwithstanding the other spouse living abroad.

The edictal citation for international divorces

If a spouse who lives in South Africa wishes to Institute divorce proceedings against a spouse living abroad, he or she will have to approach the divorce court first for consent to serve the documentation on the other spouse through a process called edictal citation. In other words, the court documents would have to be served in a manner other than the usual manner of serving legal documents. That is through the South African Sheriff. For expatriates, the court may order that the document may be served via email or through an attorney or sheriff in the foreign country.  Now we can move on to the issue of child custody and guardianship disputes.

Child custody and guardianship disputes where expatriates are involved

Child custody and guardianship disputes where one of the parents are expatriates of South Africa often occurs when one of the parents would leave South Africa for work.  Should there be a parent who wishes to leave on his or her own to work overseas; no consent would be required from the other parent to do so.

Consent for relocation of minor children

However, should a parent wish to relocate to another country or visit another country and take the minor child with temporarily for a year or two while he or she is working there, then under those circumstances, the consent of the other parent is required. This would be the case if both parents are holders of parental rights and responsibilities of guardianship over the minor child. In such a case both parents have to consent for the removal of the minor child from the Republic of South Africa. The same applies to an application for a passport for the minor child. If the father does not have guardianship rights, then his consent would not be required.

Consent for passport Applications for minor children

Although a minor child has a right to a passport as entrenched in our Constitution, if an application is made for the minor child’s passport, both parents who have parental rights and responsibilities of guardianship over the minor child has to consent to such an application. If a parent is an expatriate in another country and he or she now wishes to have the minor child travel with him or her to his or her country of work, and the other parent does not wish to give consent for such travel,  then an application would have to be made to the court for the necessary consent. Such an application can still be made while the one parent is living abroad and the minor child is living in South Africa. Communications between the parent living abroad and the lawyers assisting that parent in South Africa can be done via email telephone or video conferencing. At the end of the day, the court will decide whether or not to send the minor child to the country where the expatriate resides based on whether or not it is in the minor child’s best interest.

Child maintenance claims by expatriates

It often happens that only one parent moves abroad with the minor child and the other parent remains in South Africa. With the current cost of living, a parent may find it hard to survive abroad without financial support from the other parent. If the parent living in South Africa does not want to contribute a reasonable sum of child maintenance, then the expatriated parent may approach the relevant authorities in the country to start the legal process of claiming maintenance from the parent in South Africa.

Reciprocal enforcement agreements between countries (the REMO Act)

South Africa is a signatory to international agreements with various other countries. In terms of these agreements, countries would work together in enforcing maintenance orders in foreign countries. The relevant legislation in South Africa is the Reciprocal Enforcement of Maintenance Orders Act (the REMO Act).  This act is applied in South Africa should an expatriate wish to claim maintenance from a parent living in South Africa. The opposite also applies. Should a parent living in South Africa wish to claim maintenance from a parent living abroad in one of the signatory countries, he or she would make use of the REMO Act. A list of the proclaimed countries or territories are as follows:
  • Australia
Capital Territory – New South Wales – Northern Territory – State of Queensland South Australia – Tasmania – State of Victoria – Western Australia
  • Botswana
  • Canada
Alberta – British Columbia – Province of Manitoba – North West Territories – Province of Ontario
  • Cocoa (Keeling) Islands
  • Cyprus
  • Fiji
  • Germany
  • Guernsey (Bailiwick of)
  • Hong Kong
  • Isle of Jersey
  • Isle of Man
  • Kenya
  • Lesotho
  • Malawi
  • Mauritius
  • Namibia
  • New Zealand
  • Nigeria
  • Norfolk Island
  • Sarawak
  • Singapore
  • St Helena
  • Swaziland
  • United Kingdom
England – Northern Ireland – Scotland – Wales
  • United States of America
California – Florida
  • Zambia
  • Zimbabwe
https://www.justice.gov.za/ilr/intmnt.html Are you an expatriate of South Africa and require advice or assistance on any of the issues mentioned above? Get in contact with us. 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    

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Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much.  The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.
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However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child. Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child. Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:
  • at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else. However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half. The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

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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Relocating from South Africa with your child – When do you need consent from the father?

 Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world to live and continue your life’s journey. This may include a neighbouring country, or on another continent like Europe. Wherever it is, there are a few things to consider should you wish to relocate with your minor child. This is especially so if you are not relocating with the father. If you are the only parent to your child, then this article may not apply to you. This is where we will start off this article.

The other parent when it comes to relocation

If you are a mother and was never married to the father of your child, the father may have guardianship rights. This would be the case even though the father’s name is not mentioned on the child’s birth certificate. This is so as the Children’s Act affords certain rights to unmarried fathers. Therefore, if an unmarried father has parental rights and responsibilities of guardianship, his consent is required. This we deal with next.

Guardian’s Consent for relocation and passport – What does the law say?

The Children’s Act states the following: 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) .

Consent to the child’s departure or removal from the Republic of South Africa and Passport

As can be seen above, section 18(3)(c)(iii) and (iv), read with section 18(5) of the Children’s Act; both guardians’ consent is required for the minor child’s departure or removal from South Africa and for a passport. Therefore, should a mother decide to relocate to Canada, for example, she would need the father’s consent if he is a guardian. Now it is clear that not all fathers are guardians of their children. Here the law differentiates between married and unmarried fathers.

Parental responsibilities and rights of married fathers

Section 20 of the Children’s Act deals with the 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. From the above, it is a given, that fathers who were married to the mother, as described above should consent for the relocation and application for a passport of the minor child. This is so as full parental responsibilities and rights include the right of guardianship over the child.

Parental responsibilities and rights of unmarried fathers

Section 21 of the Children’s Act deals with Parental responsibilities and rights of unmarried fathers. It 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. Analysing the above, it is clear that only if an unmarried father played a material role in the child’s life, as stipulated, he acquired the parental responsibility and right of guardianship over the child. Therefore, his consent would be required for the relocation and application for a passport.

What if a father does not want to consent to the relocation and application for a passport?

If the father does not want to consent to the relocation and application for a passport of the minor child and he has legal guardianship over that child; section 18(5) of the Children’s Act referred to above finds application. The mother would then have to approach the High Court to dispense with the father’s consent. 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 by Telelaw