PARENTS IMMIGRATING WITH MINOR CHILDREN POST-DIVORCE
The Department of Home Affairs has enforced a new regulation that states parents travelling internationally with children must produce an unabridged birth certificate when entering or exiting South Africa. The new regulations took effect as from 1 July 2014 for all parents travelling with minor children to and from South Africa. This applies to both foreigners and South Africans.
A parent immigrating with minor children must ensure that they have the following documentation as required in terms of Regulation 6(12):
(a) Where parents are travelling with a child, such parents must produce an unabridged birth certificate of the child reflecting the particulars of the parents of the child
(b) In the case of one parent travelling with a child, he or she must produce an unabridged birth certificate and–
(i) consent in the form of an affidavit from the other parent registered as a parent on the birth certificate of the child authorising him or her to enter into or depart from the Republic with the child he or she is travelling with;
(ii) a court order granting full parental responsibilities and rights or legal guardianship in respect of the child, if he or she is the parent or legal guardian of the child; or
(iii) where applicable, a death certificate of the other parent registered as a parent of the child on the birth certificate;
In terms of section 18(3) and 18(5) of the Children’s Act 38 of 2005 dealing with parental responsibilities and rights in respect of minor children, a co-guardian of a child must consent to the child’s departure or removal from the Republic as well as to the child’s application for a passport (the only exception to this would be if a court decides otherwise).
Where one parent does not want to give consent to the relocation of the minor child, it is advisable to seek the services of a legal practitioner. In this instance, an application will have to be made to the High Court situated in the area where the child resides. The Court will then have to establish what is in the best interests of the child. The parent wanting to relocate with the minor child will have to explain to the court the reasons for the relocation likewise the parent against the relocation will have to explain the reasons for not wanting to give consent. The Court may also consider reports and recommendations from experts such as the Office of the Family Advocate, a Social Worker or Psychologist. These experts will consult with both parents, the child as well as the child’s school teachers, family members etc in order to gather all the necessary facts before making any recommendations to the Court. The experts report could include the actual circumstances of the country where the parent intends on immigrating to, for example verifying the job, the school the child will be attending, the living conditions etc.
After the Court has acquired all the necessary information, it will make a decision which will be based solely on the best interests of the minor child.
Please contact our offices should you require further assistance/information 041-373 9693
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