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              

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

 

 

 

 

 

 

 

Related Post

I’m searching for the top and best divorce attorney in Cape Town

If your marriage has broken down, divorce is something to consider. And if it is what is best for you, there is no need for it to be a daunting and stressful process. Generally, if both spouses are sensible and understand the law, the divorce should be resolved in a few months at most, even if there are minor children involved.

When is it necessary to hire a lawyer during a divorce?

Divorce can be a complicated and emotionally charged process, and hiring a Trust Account Advocate or attorney can help ensure that your interests are protected. It is generally recommended to hire an attorney or Trust Account Advocate if you have significant assets, complicated financial situations, or minor children, or if your spouse has already hired a lawyer. Additionally, if you and your spouse are unable to come to an agreement on important issues such as property division, child custody, or spousal support, a lawyer can help you navigate the legal system and advocate for your rights. Ultimately, the decision to hire an attorney or advocate during a divorce will depend on your unique circumstances and the complexity of your case.

How do I find a good divorce attorney or Trust Account Advocate?

There are several ways to find an attorney or Trust Account Advocate. You can search online for law firms or lawyers in your area, ask for recommendations from friends or family members, or contact the Legal Practice Council.

What do people fight over in divorces?

During divorce proceedings, people can fight over various things, such as property, assets, finances, child custody, and visitation rights. Having a good lawyer to assist you is very beneficial.

Finding the best divorce lawyer for your needs is crucial to ensuring a smooth and fair divorce process. Here are some steps to help you find the right divorce attorney:

  1. Determine Your Needs:
    • Assess your divorce situation. Is it amicable or contentious? Do you have complex financial assets or child custody issues? Knowing your needs will help you find an Advocate or attorney with the right expertise.
  2. Seek Recommendations:
    • Ask friends, family, or colleagues who have gone through divorce for recommendations. Personal referrals can be valuable.
  3. Research Online:
    • Look for divorce lawyers in your area through online directories, legal websites, the Legal Practice Council, and law societies.  Read reviews and check ratings.
  4. Interview Multiple Attorneys:
    • Schedule initial consultations with a few trusattorneys to discuss your case. Many lawyers offer free or low-cost consultations. Prepare questions to ask them, such as:
      • What is your experience with divorce cases similar to mine?
      • What is your approach to handling divorce cases?
      • How do you charge for your services (hourly rate, flat fee, retainer)?
      • Do you have references or past clients I can contact?
      • What is your availability for meetings and communication?
  5. Assess Communication:
    • Pay attention to how well the trust account advocate or attorney communicates with you during the initial consultation. You want someone who listens, understands your concerns, and can explain legal concepts clearly.
  6. Check for Compatibility:
    • Choose an attorney or account advocate you feel comfortable working with. Trust and a good working relationship are essential in divorce cases.
  7. Evaluate Experience and Specialization:
    • Look for a lawyer or account advocate with extensive experience in divorce and family law. Specialization in divorce cases ensures they have in-depth knowledge of relevant laws and procedures.
  8. Consider Cost:
    • Discuss fees and payment options upfront. Make sure you understand how the lawyer charges for their services and if there are any hidden costs.
  9. Review Client Testimonials and Case History:
    • Ask for references or access to client testimonials and case results. This can give you an idea of the attorney’s track record.
  10. Verify Credentials:
    • Ensure the attorney or account advocate is licensed to practice law in South Africa and a Legal Practice Council member.
  11. Trust Your Instincts:
    • Ultimately, trust your gut feeling when selecting a divorce lawyer. Choose someone who makes you feel confident and supported during this challenging time.
Remember that finding the right divorce attorney may take time and effort. Still, it’s essential to have a skilled professional who can protect your rights and interests throughout the divorce process.
Winning a divorce case is not necessarily about one party triumphing over the other; rather, it’s about achieving a fair and equitable resolution that meets your needs and the best interests of any children involved. Divorce cases often involve a range of issues, including property division, spousal support, child custody, and child support. Here are some steps and considerations to help you navigate your divorce case effectively:
  1. Consult with an Attorney or Trust account advocate:
    • Hiring an experienced divorce attorney is essential. They can provide legal advice, represent your interests, and guide you through the legal process.
  2. Understand Your Rights and Obligations:
    • Educate yourself about divorce laws in your jurisdiction. Know your rights and responsibilities regarding property, support, and custody matters.
  3. Gather Financial Documents:
    • Collect all relevant financial records, including bank statements, tax returns, property deeds, and information about assets and debts. This will help in the property division process.
  4. Establish Your Priorities:
    • Determine your priorities and goals for the divorce settlement. Understand what matters most to you, whether it’s retaining certain assets, securing custody of your children, or achieving financial stability.
  5. Open Lines of Communication:
    • Try to maintain open and civil communication with your spouse. In some cases, negotiation and reaching an agreement outside of court (mediation or collaborative divorce) can be less stressful and costly.
  6. Child Custody and Support:
    • If children are involved, focus on their well-being. Courts typically prioritize the best interests of the children when determining custody and support arrangements.
  7. Be Honest and Transparent:
    • Be honest and forthcoming with your attorney. Transparency is crucial in building a strong legal strategy.
  8. Consider Settlement Options:
    • Explore settlement options like mediation or collaborative divorce. These processes can be less adversarial and allow both parties to have more control over the outcome.
  9. Prepare for Court:
    • If a settlement cannot be reached, be prepared for litigation. Your attorney will help you build a strong case, gather evidence, and present your arguments effectively in court.
  10. Stay Calm and Manage Emotions:
    • Divorce can be emotionally challenging. It’s important to maintain emotional stability and not let anger or resentment drive your decisions.
  11. Follow Court Orders and Agreements:
    • Once a divorce decree is issued or an agreement is reached, adhere to the terms and obligations outlined in the court order or settlement.
  12. Seek Support:
    • Consider seeking emotional support through therapy or counseling. Divorce can be emotionally taxing, and professional help can provide guidance and coping strategies.
Remember that “winning” a divorce case does not always mean getting everything you want. It often means achieving a fair and reasonable resolution that allows both parties to move forward with their lives. Your attorney can help you understand what is achievable in your specific circumstances and work toward the best possible outcome.

Do you require a video legal advice consultation?

Click here and schedule one today!