One of the great things about the laws surrounding child custody in South Africa is that they primarily focus on the well-being of the child(ren) in question. They also explain parental responsibilities towards their children if the parents live in separate houses. Yet, how do child custody laws in South Africa deal with instances of immigration?
Regarding child custody and immigration in South Africa, a parent who wishes to emigrate with their child(ren) must first obtain consent from the other parent. If consent is withheld, they may take the matter to the Family Court, which will rule based on the child(ren)’s best interests.
Knowing your parental rights is the first step in understanding child custody and immigration laws in South Africa. Once you have a basic knowledge of your rights as a parent and the rights of other caregivers involved with your child(ren), you will be able to judge whether or not you can emigrate with your children and how you might go about this.
Child Custody Laws In South Africa
According to the Children’s Act 38 of 2005, unless otherwise stated by a court, both parents will retain legal guardianship of their child(ren) after their separation or divorce. Meaning that even though one parent might be the primary caretaker or have primary custody of the child(ren), the other parent still retains their rights regarding their child(ren). They, therefore, maintain the right to be consulted and give their approval or disapproval on matters regarding decisions about the child(ren)’s life.
According to Section 19(1) of the Act, biological mothers have full rights and responsibilities for their child(ren) regardless of whether they are married or unmarried, by right of the fact that they birthed them. Unfortunately, for fathers, this is a bit more tricky.
A father will have full rights and responsibilities for his child(ren) if he was married to or living with the mother at the time of the child(ren)’s conception, birth, or any time between conception and birth. He will also gain rights if he consents to be identified as the father, applies in terms of section 26 to be recognised as the father, or pays damages according to customary law.
Biological, adoptive, and legal guardians are what we call ‘co-holders’ of parental rights and responsibilities regarding their child(ren). According to Section 18(3) of the Act, this co-holder status ensures that both parents need to provide their consent before a child(ren) departs or is removed from South Africa. Both co-holders must also consent and sign for the child(ren) to apply for their passports.
The only exception to this rule will be if a court orders otherwise.
Immigration Laws In South Africa
The immigration laws in South Africa, stipulated by the Immigration Act 13 of 2002, are particularly stringent regarding travelling with a minor. If you plan on travelling with your child(ren), there are several vital documents you will need to carry with you.
These documents include your child(ren)’s unabridged birth certificate. If the child(ren) is travelling with only one of the parents, you will also need to carry consent, in the form of an affidavit from the missing parent, authorising you to travel with the child(ren).
If you do not have this form of consent, you will need a court order granting you full parental rights and responsibilities or legal guardianship. If the child(ren)’s missing parent is deceased, you must carry their death certificate for proof.
If both parents are deceased, the person travelling with the child(ren) will need to get the permission of the Director-General before any travelling is permitted.
These laws make it difficult to travel in and out of South Africa with children. Before the new regulations were enacted in 2014, a parent only needed their child(ren)’s unabridged birth certificate to apply for a passport. Likewise, both parents’ consent was only necessary for the passport application, and once that was done, one parent could travel with their child(ren) in and out of the country with no hassle.
Now you need parental consent from both parents every time you enter or leave South Africa, making it almost impossible for single parents where the other parent is primarily absent or missing to travel with their child(ren).
Child Custody And Immigration Issues: No Parental Consent
Even if you have full custody of your child(ren), you will still need to get the other parent’s consent before you can emigrate or immigrate. But what do you do if this consent is withheld?
Child custody in South Africa is a complex situation that involves many facets. You might share custody with your child(ren)’s other parent, or maybe you have full custody, or perhaps even you provide the primary residence for your child(ren), and the other parent looks after them at agreed times. What happens when one of you decides to leave the country permanently?
In the best-case scenario, if one of the parents wishes to immigrate with the child(ren), you can come to some arrangement with the other parent, and they give their consent in return. Unfortunately, this is not always the case, and in some situations, the other parent refuses to consent, putting a stop to your travelling plans.
You will need to apply to the court for necessary relief in these instances, and the presiding judge will look at all of the factors involved, but primarily they will look at whether or not the proposed move would be in the best interests of the child(ren). Namely, they will look at the disadvantages and advantages of the move, the practicalities involved, how the child will react to being separated from the other parent, etc.
The best thing to do if you are struggling with child custody and immigration issues would be to consult a family attorney, as they will be able to help you with the intricacies of this kind of situation. If you have to go to court, a family attorney will know which documents you need and can help you put your case forward in the best possible way to achieve an optimal outcome for you and your child(ren).
Our team at Burnett Attorneys & Notaries is well-versed in family law and will be able to assist you, whether it is to answer questions or help you put your case forward to a judge. We understand that every situation is unique, and we strive to handle each case with the care and sensitivity it needs while at the same time acting decisively to get the matter resolved as seamlessly as possible. If you have any questions or want a consultation, please do not hesitate to contact us.