Relocate with minor child. Parent Refusing Consent for a Passport

Relocation - Refusal of Consent for passport and removal

Parent Refusing Relocation, and Passport Application for Minor Child

Advocate Muhammad Abduroaf - Advocate of the High Court of South Africa
Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa

Often times, a parent would want to travel overseas, relocate or emigrate, and take the child with. However, the practical aspects thereof are not that easy. For starters, your child requires a passport. And what does the law say about passports of a minor child? As you would see later, both parents holding parental responsibilities and rights of guardianship should consent to a minor child obtaining a passport. That is a requirement in Law. But let’s say your child already has a passport. Can you still take your minor child out of the country or relocate? Yes, you can, as long as you have the consent of the other parent. This article does not only apply to parents of minor children who are not married to each other or separated. It applies to all parents of children holding parental responsibilities and rights over them, married, separated, or divorced. Before we move on, let us look at the most popular countries South African’s relocate to.

Popular relocation countries for South Africans

If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:

  • United Kingdom (UK)

  • Australia

  • United States of America (USA)

  • New Zealand

  • Canada

  • Angola

  • Botswana

  • Chile

  • Zimbabwe

  • Germany

  • Netherlands

  • Swaziland

  • Israel

  • Portugal

  • Mozambique

  • Ireland

  • Malawi

  • Switzerland

  • Namibia

  • Greece

If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you.

The parent refuses to consent to emigration

Parents of minor children differ on many things. Sometimes it’s minor issues. For instance, which clothes the child should wear. However, some disagreements are serious and exhausting.  For instance, what school should the minor child attend, or extra-mural activities to partake in? What school a child attend can affect the contact rights of parents when they live in separate homes. Now turning to this article. What if one parent wants to go away on holiday or relocate with the child, and the other parent refuses to give consent.

One obvious reason to object to a relocation would be that the parent that remains in South Africa may not see the child for some time. This becomes a problem if the reason for the relocation is work-related, or for a better life. Does this now mean a parent must not better his or her situation in life in consideration of the other parent? And what if the other parent does not pay child maintenance? Must you still give up the job offer overseas? Worst yet, if the reason for the relocation is due to the parent having custody of the child remarried, and his or her spouse wants to relocate due to work reasons. Now let’s unpack the law.

The Right to a Passport

The South African Constitution, Act 108 of 1996 affords everyone certain basic human rights. These rights are entrenched in its Chapter 2, of the Bill of Rights. Section 21 of the Bill of Rights deals with freedom of movement and residence. It states the following:

21 (1) Everyone has the right to freedom of movement.

(2) Everyone has the right to leave the Republic.

(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the

Republic.

(4) Every citizen has the right to a passport.

Now, seeing that every child has a right to freedom of movement, and a passport, what does this mean to the parent who wants to take a child out of the Country for relocation or holiday?

The law on Consent for Passports for Minor children

Section 18 of the Children’s Act 38 of 2005 deals with Parental responsibilities and rights in relation to minor children.  According to section18 (3) read with section 18(5) of the Act, 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 would be if a court decides otherwise. Therefore, even if the child lives with the father and he cares for her, if the mother has guardianship over the child, her consent is required.

What can be done if consent is refused for emigration?

Now that we know that everyone has the right to obtain a passport, and leave the Republic, what does this mean to the parent who now wants to relocate with the minor child, but the other parent does not want to give consent? An application to the competent court has to be made if this happens. And in this case, it would be the High Court where the child resides. The Court would have to determine what is in the minor child’s best interest. The High Court would listen to why the parent wants to leave, and also why the other parent does not want the child to accompany that parent. Once all the information is before the Court, the court would make a decision. The decision would be based solely on the minor child’s best interests.

The Court may also consider reports and recommendations from other experts. For example, the Office of the Family Advocate, a Social Worker or Psychologist. Obviously, their experts need to consult with both parents and the child and have all the facts before them before they can provide recommendations to the Court. They may decide to consult with the child’s school teachers, family member etc. A good report would deal with the actual circumstances overseas. For example, verifying the job, the school the child will be going to, and so on.

What are the factors the court would look at in relation to emigration?

If one parent leaves the country with the child, it would mean no physical contact for the other parent. This would be the major objection. On the other hand, a parent could object due to the country visiting being dangerous. In the case of relocation, an objection could be that the child’s education would be compromised. One other obvious reason would be that the child would not see the remaining parent and his or her family in South Africa. Counter-arguments could be the use of Skype, and holiday visits etc.

Advice to parents who wants to relocate or temporary leave South Africa with the minor child

If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is.

In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday.

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127 thoughts on “Relocate with minor child. Parent Refusing Consent for a Passport

  1. Good Afternoon!

    I am searching for the latest information requirements to travel with my child to Mputo.
    We are well traveled, until the new law came into effect. As a single parent, both names appear on the unabridged certificate and a Passport has been obtained already at a very early age. She is 16 and I wouldn’t like to embarrass or insult my child by having to turn around as we are travelling in convoy as this is a trip arranged by my employer. Previously persons Home Affairs told me that being separated and never married, I am the legal guardian over this child. With the last travelling arrangement, I only had to provide a written affidavit, confirming that we are separated and never being married and that I am the only caregiver, as the biological father is an absent parent, since birth (2001).

    Kindly inform:- Going through to Komatiepoort border Post, could i still cross border with my child by taking My ID, Passport and Affidavit to confirm that i am her only caregiver?

    Also taking along my child of 16 Passport, ID..

    Please inform..

  2. Father absent, nowhere to be found, does pay maintenance, child using fathers surname, mother wants to travel for a holiday,with the child, need passport . Please advise

      1. Hi – we are busy with adoption – and we are 99% there – father also nowhere to be found – a warrant for his arrest is out for 5 years now and has not paid maintenance since 2008 we have not hear from him – we placed add in newspaper for the adoption (my new husband is adopting my son) – how do we go about getting a passport for my son –

        1. Good day
          Once the adoption is completed, then you and your husband should apply to the Department of Home Affairs for your child’s passport. If you want to do it now, you would require a court order to dispense with the father’s consent.

  3. This was a very helpfull article. My problem is my daughter is 5 her father and I was never married. I am struggling too find a work in south africa for almost 2 years now, and friends of mine have immegrated and started their own businiss and overd me a possible work oppertunity. Her father already said she cannot go if the.time is right for me to go… Only my name apears on her birth certificate, and although he does pay maintenance, I am her primary care giver. What can I.do?. I also have another matter her father and I signed a contract with our agreement for visitation and maintenance. He has been paying…but as in the contract he has nit been paying the 10% annual increase, he said he is struggling and I can relate, but he recently bought himself a new cellphone contract, gies mountain biking, and otherthings. Know he wants to take 1300 from her maintenance toward her schoolfees and only pay the 600 balance. She is with him 4 days a month and with me the majority. Is it true that the maintenance includes medical and school fees or is it just for thecare of the child.?

    1. Good day
      If you wish to relocate, and the father refuses consent, you would have to approach the Court for consent. Regarding maintenance, you should go to court ASAP.

  4. I have an opportunity to teach abroad but my child’s father refuses to give consent for her passport. He has not paid support for 8 of her 10 years. He never accompanied me when her birth was registered. He has never shown any interest in her and even when I encourage her to visit him, she doesn’t want to go. I asked him to accompany us to apply for her passport. He said he will not. She will receive a better education (my employer will pay for it). I don’t know why he doesn’t see this as an opportunity for his daughter? What do I do?

  5. My kids fathers rights have been terminated by a magistrate at children’s court-children’s act,sec28 act 38 of 2005, the father has been absent for 11 years not paying maintenance or contacting them,I’ve been married for 6 years and we also have a child together,my kids only know him as their daddy, would this court order be enough to immigrate? My husband and I will be working in Canada,so we would like to move our family there too please help

    1. To leave the County, both guardians should consent. So if you are the sole guardian in terms of the Court Order, then that should be enough.

  6. Thank you so much for such a helpful article.

    The father of my 3 year old child is from Portugal and has been asking for years that we relocate to his country as he had better means of making a living for all of us there,however iv been the caregiver as the father was absent most of the time and I recently lost my job and social workers were busy trying to draw a plan on how he would see our child if he’s in the country ,but now I’d like to leave the country and go start over but I need to have a contract as the father previously was forcing me to change our child’s last names to his when I went to his country I refused because I felt unsafe and that he would completely close me out of our child’s life .we were recently adviced to get both countries to sign agreements by a mediator .ie if and when I’d like to visit my own country with my child in case the father is refusing like the last time ,our childs last name will only change if we are legally married,our allowance as he is promising in Portugal as I’m leaving my country on his terms ,to visit my country on holidays and to be able to travel when I need to come back to SA.thank you kindly

  7. Child is 3 years old, father is a foreigner. Absent since child was 2 months. Never paid maintenance. Never made contact with child. Child has his surname. I wanna change child surname to mine and apply for passport. I want sole parental right and responsibility. His name appears as father on birth certificate.Please help

  8. Good day

    I am considering leaving South Africa but before i look into anything, obviously i want to take my daughter who lives with me and i am her sole guardian. Her father is around and sees her cause of the court order and he pays me R400 a month maintenance since my daughter was 2 years old. other than that he does not provide enough or support her where needed.
    we were just dating so never married, my daughter has my surname and his not on her birth certificates cause he did not want to fill the form out his part of the form. I think i am rambling on sorry so basically i need to ask him i know his going to have an issue with it but should i get his permission before i look at jobs and living overseas or should i apply then ask her father? but if he says no i have along road ahead of me so am not sure what to do first :(

    Thank you
    Regards
    Single Mom

    1. Good day
      You must decide what is best for you and the child. It may be best to first get a job overseas and then tell the father about it. If he refuses to consent, then approach the Court for consent.

  9. Good day,

    We are in the process of Immigrating and my 16 year old has already obtained his Passport, just waiting for his Visa, his biological father never registered himself as his father therefore he is not on his birth certificate, and he has never really been apart of his life, do I still need his consent to take him out of South Africa?

    1. That question you need to ask the Immigration Authorities as to what they would require. However, if the father does not have parental responsibilities and rights of guardianship, then his consent is not required.

  10. Good day

    Is it possible to bring an in Chambers book application if the other parent refuses parental consent for the minor child to leave SA for holiday only?

    Is a Namibian High Court divorce order (that contains visitation, child maintenance etc) enforceable in SA. Both parents and the minor reside in SA.

    Thank you for your assistance.

    1. If i understand this correctly, you are saying if the father is absent and there is no responsibility, rights(he just aint interested) of guardianship, his consent is not required?

      1. If a father just impregnated the mother and went missing, he would have no rights over the child. However, he can acquire it later by forming part of the child’s life. However, the problem happens when third parties, for example, the Department of Home Affairs asks for the father’s consent when applying for a Passport. In such a case, even if the father only impregnated the mother, they would still require it. In that case, you need a court order to confirm that you have sole gaurdianshipship.

  11. afternoon i have a big problem my wife took my now 3yr old last year to zimbabwe after i had refused for the child to travel to her grandads funeral since the baby had no passport and we only had S,A birth record how ever since this happened she refuses to bring back the baby and i have no access to the child since i reside in S.A and child was born in S.A its been a year now and still not willing to compromise since she is not working and the living conditions in which the child is in is not safe…plz help

    1. Good day
      You may want to speak to a lawyer in Zimbabwe and see what they can do that side. Otherwise, visit the office of the Family Advocate in your area.

  12. I am a single mother who is wanting to take my child on a overseas holiday. I was never married to my child’s father however his name appears on her birth certificate. The problem that I have is that my child’s father stays in another country. He is not against me taking our child out of the country. I need to know how to get around having to do a letter of consent from him as he lives in another country. This letter needs to be an original or certified copy. Can I approach the court to give me full rights to leave the country with our child? What is the best way forward as I don’t see how I can get this consent form every time I want to travel.

    1. The cheaper option would be for the father to sign the documents and send it to you. However, if it is best for child, a court an order that his consent not be required. That option can be very expensive as you have to pay lawyers.

  13. Thank you so much. This is the most insightful article written on this subject. Please advise the process of making an application to the court for travel, I have been advised that I require both a lawyer and advocate, is this correct? My daughter had never had contact with her biological father and he has never contributed any support. She is now 16 and a half and has qualified for World Championships for her sport in the UK in October. How do I get her out the country?

    1. Thank you.
      If the Attorney has rights of appearance in the High Court, then you only need that attorney. If you are based in Cape Town, feel free to contact our offices.

  14. Thank you so much for your revert. Is it possible to do it without a lawyer? I am unable to afford an attorney and unfortunately I’m in Durban.

    1. You are welcome. Yes it is possible to do it without a lawyer. But you would need to know how to draft your court papers and court procedure etc.

  15. HI.
    How do I go about getting a court order / consent to immigrate with my 12 yr old daughter? Her father was all for it until my daughter decided to not see him anymore. We have years of a very unstable relationship behind us with my daughter and her dad. I literally have it on email that he will no longer do her passport, etc. I cannot afford an attorney / lawyer etc. So I would just really and truly appreciate any advice on the procedure to do this myself.
    Thank you.

    1. You would need to make an application to the High Court. If you know the law and procedure, you can do it yourself. Otherwise, we advise you maybe find an organisation that does probono work. E.g. Legal Aid, Legal Resources Centre, or ask the Law Society to recommend one.

  16. Hello. My son is 10 years old and according to the divorce decree I have primary residence since he was 2 years old. As he’s grown older, I’ve let the father see him more than was in the decree and have a 2 week with dad and 2 weeks with mom. On the weekends with his dad, my son is sent to the new wife’s mother in a different town, and my son does not like this. Am I allowed to reinstate the original decree in terms of visitation if the father insists on taking my son somewhere that is not with either biological parent?

    1. Good day

      You must act in what is in the chlid’s best interests. If you truly believe that reverting to the terms of the Order is in his best interests, then you should do so. But do it in a manner with the possible co-operation and agreement with the father. Maybe get someone to mediate the issue first etc.

  17. Both my husband and I are British citizens, he is also a SA citizen. I am in South Africa on a temp spousal visa. We have 2 children, aged under 3 years. Both our children have British and South African passports. My marriage is becoming very toxic and I am leaning towards a divorce as it is starting to affect my children. Unfortunately my visa will be terminated if a separation occurs between my husband and I which means I will no longer be allowed to reside in South Africa. I am the sole carer of my two children, however am unable to get a work visa. If the outcome was a divorce, I would have no choice but to reside back to the UK. My question is regarding the rights I have over my children. My husband would refuse to let them leave the country with me, however I know it would be in their best interest to stay with their mother. Is this request likely to be refused due to the fact I am a foreigner?

    1. We advise you speak to a good immigration lawyer. However, if it goes to the Divorce Court, the Court would have to decide what is best for the child. Feel free to call us on 0214243487 and we would be better to advise.

  18. Hllo I’m still married but am also planning on leaving SA with only my 3 kids. Can I leave while I’m still married and take my kids with ?

  19. Good day,

    My minor child of six years old resides with me( the mother). Our current parenting agreement stipulates joint custody. However, the Father is immigrating to America in a month.

    He is withholding my sons passport for a D from me for a holiday we are supposed to be taking in December, as well as denying my son and I the opportunity to potentially relocate to Australia at a later stage.

    What happens in this type of case of joint custody?

    1. Good day

      The parenting plan needs to change to be in line with the changes taking place. If he refused to consent for relocation, you can approach the court for such consent. With regard to the passport, the court can also force him to give it to you. Best you see a lawyer.

  20. Hi wonder if you can help me. I have full parental rights of my daughter and I wish yo relocate. Would i still need consent from the child’s mother. As it stands it has been explained to me that she has no rights over the child. Thanks

  21. Good Day,

    My question is that I am the primary care giver and currently unemployed, my son has dual citizenship and we can live in the eu without an issue. The father refuses to sign consent, but he does not live in SA. He lives in EU.

    How would this be approached, as my ex does not live in SA? Do I still needs his consent?

    Our divorce is not yet finalized.

  22. I am married to a British Citizen and I am a foreigner myself and have been living separately for 3 years. I have been trying to get divorced for 3 years and have spent an obscene amount in legal fees and I still feel like I am headed no where with my future ex. Last year, he secretly moved back in the family property(jointly owned) when I was away without consent and has since refused to pay me my portion of my market related rental. He does not want to pay child maintenance and since being in his ‘new’ relationship, has been neglecting the girls even more.The girls reluctantly still spends half the week there and is looked after the maid mostly. I have a huge support structure back home as well as from the financial support from my family, I am able to give them a much better life there. I feel absolutely trapped here. The advice I have been given is that the girls need both parents and with that I have to no choice but to stay here till they are 18 at least. How can I argue to be primary custodian atleast in this country without going to court ?

    1. Good day

      The important factor is what is best for the kids. It seems based on what you stated it would be best for them to go with you. Feel free to give us a call to set up a consultation to discuss your matter and way forward. Call 021 4343487 or use this link, wwww.ourlawyer.co.za/advice.

  23. Hi, we immigrated to New Zealand 9 years ago and got NZ citizenship and one minor child who was born in New Zealand and automatically has NZ citizenship by birth. We moved to Perth for two year and it was the best decision ever for our child with all the benefits we get over there. Hubby wanted to come back and due to some marriage problems I was hoping it will get better if we move back to South Africa but it made it even worse. We’ve been back a year and 8 months and we’re now separated and living in separate cities. With our child’s medical history as a 23 weeker premature baby who is now 4 year old, she needs regular checks with dietitian and pediatrics. I want us to go back to Australia where we get free medical support and assistance when needed. Kids get free dental and we all get free GP visits when needed. Overall, education is better and I can work/study with support from the government.

    With hubby that’s refusing concent we can’t leave South Africa even with our New Zealand passorts. We have SA residence and have no intention of applying for SA citizenship. What are our rights as NZ citizens in SA for going back home to Australia please?

    1. The Court looks at what is best for the children. If the father refuses for you to leave with the kids, approach the court and it would decide on the matter.

  24. I need to apply for a passport for my daughter but her biological father has not been present through her whole life yet his name is on her birth certificate and he cant be found for 11 years what can i do to optain her a passport

  25. My husband wants to adopt my daughter. We have no idea where the biological father is. He stopped paying maintenance in May 2018. He’s never had any interest to see her, but now claims he’s stopped paying, because he doesn’t see her. There’s a chance he might be overseas, but he won’t make any contact, because the court is looking for him regarding the maintenance in arrears, for which he’ll go to jail. Regarding the adoption, we now have to advertise in the paper, for him to react and give consent to the adoption. What are the legal implications if he is in fact overseas – he claims he wants to see his daughter, but has left the country without telling anyone, has never wished her a happy birthday in 11 years and in 2011 even signed a letter/affidavit stating that he no longer wishes to be acknowledged as her father.

  26. I want to take my 7yr old son away on 2 week holiday to Amsterdam to see family, but my ex refuses to give consent as she says I will keep him once I leave SA, the flight is too long for a child his age and that it is too far for him to be away from her is something had to happen. He lives with here but we have 50/50 rights responsibilities decision making regarding our son and his well being. Holidays and all contact is shared 50/50 or alternating holiday cycles. I feel she is jealous and malicious in her reasoning, and not thinking with best interests of our son going on holiday with his Dad.
    I have already approached the Family Advocate for reports and relief, each time in my favor, however the last time they said we would have to go back to Family Court in Randburg for all future issues.
    Can her refusal of permission be heard if I launch an application at the local family court, or would I have to do a High Court application, and can I represent myself?
    Alternatively should I be approaching the Family Advocate again for recommendation or report? Thank you

    1. Good day
      You would need to approach the High Court. However, it may be possible that your specific children’s court would entertain the matter. You need to find out. Either way, you can represent yourself. But its always best to make use of a lawyer in the High Court. The court may instruct the family advocate to investigate the matter. A report is always useful to the Court.

  27. Thank you for your reply and advice.
    Is it reasonable to make an appointment regarding this with the Family Advocate to make a report? The last time I was there they were so fed up with both of us and coparenting issues, they said it’s the last time they will see us and we must go to local Family Court.
    Is the FA compelled to assist in dealing with this and making a recommendation?
    Thanks

    1. You are welcome. The report would only be useful or enforceable of a court makes such an order. It may be best to make the application and ask the court to order the Family to do a final investigation.

  28. How long can a Consent application take in the High court, and would the Applicant’s chances of success be greater if she or her new spouse already had a firm employment offer from overseas?

    1. Good day
      The time depends on a lot of factors. For example, how urgent your case is and also if the other parent is opposing it etc. However, the factors mentioned would increase the chances of success.

  29. Good Day,

    I trust you are keeping well. I currently have a access & visitation case at the high court in PTA and we are waiting for the family advocates report, but it has been almost 7 month that I went with my daughter and the father went a month later. We weren’t interviewed together. However, he doesn’t utilize his full time with visitations at my house, were I sit my full time at his house. We want to immigrate, but the biological father is refusing to give consent. Do we have to wait for the family advocates report, before we can bring a application for consent to immigrate? What can or can’t I do?

    If you can please give me some advise on this matter, as things are getting urgent.

    Thank you.

    1. Good day
      You can approach the court at any time, but you need to convince the court why they should not wait for the Family Advocate’s report. The court would then decide what to do based on what is best for the child. We advise that you speak to an attorney on this issue as it is not that simple.

  30. Hi. I am enquiring on behalf of my daughter regarding parental consent to travel to S.A.. We live in the UK, and want to visit family in S.A. My daughter has a child (now 6) and the father of the child is South African (as are we). He has never been a part of her life, but his name appears on her birth certificate (Scottish). He recently agreed to her name being changed to my daughter’s married name, to make life easier. As far as my granddaughter knows, her father is my daughter’s husband.
    The problem is that the biological father works on a cruise-liner in the Med, and is not able to see a lawyer to supply an affidavit, and will be away for a few months. We are wanting to travel in November. The biological father has never paid maintenance or had any parental input, but we do not have a Court Order to this effect. Is there any way to travel without this letter of consent?
    Many thanks.

    1. Good day
      As your granddaughter resides in the UK, you may want to ask a UK attorney if she can leave and travel South Africa without the father’s consent. If we got the facts wrong, for a child to leave South Africa, she would need both parent’s consent. If that is not possible, an application would need to be made to the Court to dispense with such consent.

  31. If I’m unmarried and my child’s father is not on the birth certificate do I need his consent to apply for a passport?

  32. My fiancée and her ex-husband have a 15 year old daughter and he has disowned her this year and wants no contact with her. Her mother was awarded sole guardianship and sole custody when they got divorced. He was only given visitation rights.

    Her passport has since expired and her grandfather wishes to take her on holiday to Europe next year. Would he need to give consent to apply for a new passport and to let her leave for those few weeks? She also needs an unabridged birth certificate, does she need him to apply for this?

    She has his surname.

    Thanks so much!

    1. Good day
      The Department of Home Affairs would require his consent for the Passport. With regard to the unabridged birth certificate, you would have to confirm with them.

      1. Thanks so much, must he physically be there to sign for her passport? We live in Cape Town and he is somewhere in Limpopo, we don’t know where exactly he is living.

        Basically, we want to know if
        a) Must he sign for the passport application and
        b) Must he be present to fill out the forms and sign, i.e. must he come to Cape town or we go to Limpopo and go together to Home Affairs to apply for the passport.

        Thanks

        1. You are welcome. Our understanding is that the Department of Home Affairs wants both parents to be physically present at their offices when passport applications are made.

  33. Hi I have 3 kids with my wife. All 3 is born out off wedlock and while we were living together but we did got married 5 months ago. I’m on the birth certificate as father of all 3 and they have my surname. I’ve been the primary bread winner since we started living together till now. My question is my wife is always threatening to leave to another town with my kid whenever there’s a disagreement, is she legally allowed to leave with my kids and I just accept she take them. Or do I have the right to keep the kids in their primary residents and let her leave without the kids? There is no existing court order for custody or otherwise so I take it we have joint custody. I just want the best for there stability cos she did it once and it affected my 1st born school and I had to go fetch them on her request when she came to her seances.

    1. Good day

      Both you and your wife must act in what is best for the kids. If she leaves, and it is best for them to leave with her, then you must allow it. However, if there is a dispute as to who they must live with, then the matter must be resolved via mediation, or by a court of law. We cannot say what will be best for your kids. Only child experts or a court can do so.

  34. My ex husband got married last week and today sent a social worker to my work place, according to her he wants to draft a parenting plan, different to our court order because he is relocating to New Zealand. He has paid maintenance for this past year only and has visited the children as per court order this past year, we’ve been divorced for 6 years. The social worker set up an appointment for Friday 02/10/2018… this all happened today only giving me only 2 days. I requested that the new wife not be present because she and I cannot stand each other because she was seeing my husband behind my back and is now married to him. Does she have to be there? I feel that it is my children with him and I do not see why she is required to be present because she is not supporting my children in any way. If she is there can I refuse to have the meeting with her present and settle it in court rather?

    1. You would have to ask the Social worker if the wife is required to be there. Maybe call the social worker and advise her that you do not want her to be there and see what she says.

  35. I am very grateful for this post.I had a son from a previous relationship my son I 15 years now and we wish to immigrate father however says no he will not give consent.He has never paid any child support.Sees child once in 2 years.My now husband of 13years has taken full responsibility but father of child still wants to refuse permission.I think out of spite.Cause hr can definitely not give my son a good future even if I decide to leave my son behind which is not an option Cause I dread the fathers lifestyle and my son’s future will me a mess.

  36. Good morning

    Me and my partner of three years have decided to move to AUS with my two girls from a previous marriage.

    My ex and his wife also applied for a visa but it got denied and although he was happy that we applied for AUS as well he now says that if his visa is denied, he will not give consent to let the girls leave with us. They muat stay as he can provide a better life…He works outside SA or he works away from home and very long hours. He is a carpenter and does his own thing, so he he is not employes by anybody and does not earn a steady income.

    I applied for the skilled migrant visa that gives my whole family residency for 5 years and then citizenship. We also benefit from from free education and medical aid if we were to go there. He only applied for sponsorship visa.

    I am a teacher and I want to take the girls and myself to a better future.

    Can u assist in a starting point for me?What do I do?

    Debbie

  37. Advice needed. A friend of mines son was born in south Africa and his father only had contact with him for the first few months of his life (He is now 11). We left south Africa for a better life, but she didn’t think she needed his father’s consent and so that wasn’t sought. We want to come back to SA for an holiday and visit friends but I have been told that she could have problems when returning with her son. Is this true and if so is there anything she can do to get permission from anywhere to travel with her son. She doesnt know where his father lives now and she has had no contact with him for over 10 years
    Thank you in advance

    1. The law says that both guardian’s consent is required for the minor child’s departure and return to South Africa. She can try to convince the authorities that she cannot get hold of the father, but we doubt it would work. The legal route is to obtain a court order making her sole guardian. She may make such an application in the Country she is currently in.

  38. My Son’s dad is living in the Uk. my son 15 years old. He want his Son to go and life with him, but he ask me to sign all right to him as a mother, when I question it they informed me that that is the rules of the uk . I will sign that he can go and live with him, not not sign him off or give him 100% controll over him. What can I do to make sure I give him primission to go but not sign him off completely.

  39. Alinah

    Good day, My son is 3 years old and he has not seen his father since he was 1, there is no court order for the father to maintain the child and I have no need for that, the problem is since the child was born the father has not made any effort to take care of the child although he did consent to his name being put on the certificate, now my problem is that I cannot find the child’s father, even to communicate with on the phone regarding the child’s welfare and until last year July 2017 he has done nothing but make promises to do better for the child and now he is off the grid, I want to be able to travel with my child without having to bother him in regards to consents when travelling abroad or to make other decisions regarding where he goes to school and so forth, what happens if I have to make decisions and I have to get his consent, I have no contact with his family and they don’t even know my son so there is no way for me to get him to come and talk to me regarding my child, how do I get a permanent consent from him or better yet how do I remove him from the child’s certificate.

    1. Good day
      You would need to approach the Court for an order that you be the sole guardian of your son. The court would grant you the order if it is satisfied that it would be in your son’s best interest.

  40. I am also planning to emigrate with my daughter. Her father’s details are not on her unabridged birth certificate. Do I still need to obtain consent from her father. He does not pay maintenance and has very little, if no contact with him.

    1. Good day
      That would depend if he has parental responsibilities and rights of Guardianship over the child. To decide that, one needs to see the father’s involvement in the child’s life. We do not want to guess that he has rights or not. Nonetheless, we presume that the Department of Home Affairs would still need the father’s consent. Please follow up with them.

  41. I believe my ex wife is trying to immigrate to the Netherlands with our daughter. She has asked me for consent in the past and i refused as I wont be able to see her at all. We have shared custody of our daughter and she is well taken care of in both homes. Is my ex wife able to immigrate with our daughter without my consent when she has 2 very loving homes. ? The court order after our divorce was very fair in terms of when both of us are able to see our daughter but when she is over seas the court means nothing…..

    1. Good day
      You may want to set up a meeting with us to discuss this issue.
      The court would decide what is best for the child. Various factors need to be looked at. These include why she wants to leave and the living conditions overseas.

  42. Good day,

    I am looking at relocating to New Zealand in next year. My son is 10 years old. His biological father has said that he would be present for the passport and unabridged application, however he has let me down 2 times costing me money each time. He has not been in my son’s life in any way or form since my son was 6 months old. He said he would sign any forms but he struggles to get away from work and he does not have transport. He is now ignoring my calls altogether. This man has never given a cent to his son, and now he is keeping him from a future in New Zealand we have family there we just can’t go due to this. We were planning on going over for 3 weeks this December – but we could not get the passport and unabridged done. What can I do?

  43. Good day

    I have a daughter of 2 years old sharing father’s name no agreements in place we are Sept and what’s to be part of her life but I refuse for him to see her because he has a drug problem and only see her when I’m around no court papers or order is in place for this he is trying
    To fight to see her more however I want to move to Thailand to my partner
    What is the process do I need to fight for custody first or what is the process as he won’t let me leave with her

  44. I am divorced and my daughter lives with me. I have re-married and my husband provides for my daughter. I want a passport for my daighter but her biological father does not want to give consent. He has not paid maintenance since 2007. He barely has any contaact with her. Please advice or assist with legal proceedings.

    1. It depends on the urgency of the matter. It is best to discuss your specific case details with a lawyer and he or she can advise on how long. It also depends on the Court.

  45. Good day

    My husband was sentence for life in prison for childrape last year, we have 2 children age 13 and 14. They dont want to speak to him because of the incident. we want to visit Mosambiek for a holiday, he refuse to sighn their passport papers. We are currently bussy with devorce also. what can i do? Please assist.

    1. Good day
      You would need to make an application to Court for an order that his consent is not required. We advise you speak to an attorney face to face on this issue.

  46. Hi, the unmarried father of my child is moving overseas. I would like to travel abroad with my child. He has agreed to sign over her rights to me, although I would still like to receive maintenance from him and concerned if he signs her over I will not. How would I go about doing this?

  47. Good Afternoon
    I have a huge problem i need help with.
    My child is 6 years old and the father of the child has never been present in her life. I recently broke up with my Fiance who my child called father, she knows who her real father is but has absolutely no interest in him or he in her. He has never giving me any money toward our child for care or education, i must add he has other children aswell where he does not pay for those children, he moves around alot, deletes social media accounts and changes his number constantly. He does not visit my child and neither does she, His surname is on her birth certificate that he forced me to do when she was born, he was emotionally abusive, hence the seperation, her birth certificate states that we were married, but we never were, ive been wanting to get it changed to unmarried but he always blocks that for me. Like i said he doesnt pay me anything, never has. but time and time again he wants to disown her, i have it all on black and white, but the moment i speak to my lawayer he retracts it and says he wants to be a part of her life, which he never does. Recently i got a job offer overseas and i tried to approach him for consent. He said if i take our child over seas he would make sure thats the last thing i ever do. i still have all the proof and everything, would could i possible do, to create a better life for my child where she does not feel neglected by an absent father?

    1. i must also add that my lawayer is discussing him disowning my child with a child courts officer. would that help my case at all, even though he retracted his statement of disowning her only a day ago. but the affidavit was signed by him and two witnesses with a copy of his ID

      1. Your lawyer needs to approach the court for the appropriate application. All the facts must be put before the court by and you if the father is interested, by him. The court would then decide what is best for the child.

  48. Hi there

    Me and my ex has been divorced for 4 years now. And we have co guardianship. My daughter is 8 she is 14 days with me and 14 days with her month. I pay 90% of everything even though its 50/50 guardianship. She now wants to move abroad with her new south african husband. Whats the chances of the court overiding my consent? As i will refuse for her to remove her from my life.

    Ps school holidays she is with me the while time aswell.

    Regards

  49. If the court pronounces the mother as unstable, will the father be able to take the child abroad without the mother’s consent? On what basis can a mother be declared unfit?

  50. Hi there, on what grounds can legal guardianship be removed from the mother? Will a suicide attempt be enough for a court to declare the mother unfit? And will the father then be allowed to take the child abroad?

    1. Good day
      Guardianship primary deals with the aspect of consent for important matters regarding a child. If a suicide attempt, based on the Court’s view is reason enough to limit her guardianship, and in the child’s best interests, the court should order so. Then the court would have to determine if the father having sole guardianship would also be in the child’s best interests etc.

  51. I never married my 14 year old’s father however, his name appears on the birth certificate. My son uses his second name. I have been his sole carer for the past 10 years. I live in Cape Town and his father lives in Pretoria. He sees the child about 6 times a year. He refused to get a parental agreement four years ago. He refuses to be involved in my son’s academics. I had previously lived in the USA while a student with my son for four year and have been back in the country for 4 years. He pays maintenace without a maintenance order though. Now, I just received a scholarship to study in the UK for a year and I want to take my son with. My son has never visited his father in Pretoria because he refuses to meet and see his new wife. His father personally asked him to visit him BUT, my son said he is not ready! I know he is not going to give me consent to travel with him. As it is, I pay for his schooling, extra mural activities etc. So, I just dont know what to do…..

    1. Good day
      The High Court can give consent if the father does not want to. It is best you consult with a lawyer and take the case further.

  52. Good day

    My daughter and I are S.A. and British citizens, holding both passports. Her Dad, her and I returned from UK to S.A. to assust family with terminal illnesses and bury our family of 5 over the last 6 years in S.A.

    Her Dad and I divorced 2015 and he returned to work in the UK but came out every 4 months to visit her.

    Now her and I need to return to Britain.

    Are there any requirements when my daughter and I both fly from South Africa to the UK as I don’t want there to be any issues or do I need any specific documents to carry to ensure we are not restricted?

    Thank you.

    1. Good day.

      It would be best to discuss this issue with the Department of home Affairs.

      However to avoid any issues you should make use your British passport or obtain a letter of consent from the father If you are making use of your South African passport. The Department of home Affairs has specific forms on the website.

      However verify the about with the Department of home Affairs.

  53. What would be the situation though if the primary caregiver is simply moving to another province within SA? Would the fathers consent still be required? The move in this case would be too far to make a day visit possible.

    1. Good day.

      Unless there is an order of court stipulating that both parents consent is required for the relocation to another province, then such consent is not required.

      If one parent has an issue with the relocation he or she should approach the court.

  54. Dear Attorney. Thank you for this valuable information I’ve been searching for sometime. I am a mom to 3 children. Ages 15,12,7. Pending divorce for 4th year running. He moved out with his girlfriend since he filed 3 years ago. High conflict. I am a professional. I didn’t earn an income for my duration of mothering on my husband’s request. So he was the only bread winner (a specialist physician) . I resumed employment as soon as my husband filed for divorce as he completely blocked off my finances. From the rule 43, I was awarded interim maintainance (much less than the marriage) but it was manageable. He began defaulting each payment bit by bit. UNtil i found myself almost completely maintaining my kids myself. (By then I also built up my employment position). Until the unpaid bond got high and I eventually had to move out with kids and rent. (He’s currently paying only the medical aid and R600 per child – . He tried pleading poverty ONLY after I filed contempt of court. The court threw it out with cost.

    Because of the outstanding debt, i agreed to sell the houses and then settle the divorce. Again he’s stalling and being difficult. The next available divorce date by court is only june 2020. (unless he agrees on a settlement). The contempt of court case will resume again.

    My immigration question. I have been recommended primary parenting rights from family advocates with visits to father every second weekends and half holidays on the rule 43 order.Currently I’m in the city that we came to because my husbands job was here. I have no support and family here. My job here is secure but i could do with a better income. I have met someone after 3 years of being separated. He lives in a SADEK country. He is a well established business man with 2 grown children 16 and 19. I plan in migrating to his country where job opportunities for me are ample. Life is safer and more natural (not city infested). I wish to marry him only culturally (not by law). He is willing to help me establish my career, offer us housing as well as assist with private international standard schooling for my kids. Since my husband filed for divorce, our standard of living dropped substantially and moving to my new partner will actually be resuming the same standard of life they had. I know my husband will refuse the immigration of the children. What are my chances of being successful to make a court application for migrating with all the kids (after the divorce is finalised)? PS// The kids definitely want to leave and live with me. Will the childrens voices be heard? Their dad has hardly been involved in their daily school and extra curricular activities throughout.

    1. Good day.

      Based upon what you are saying, there seems to be a strong case for the relocation of the minor children. However we still advise that to consult with the legal practitioner on the merits of your application. The legal practitioner will then take your case further. If you require legal advice only for now feel free to contact us on 0214243487 or the link http://www.ourlawyer.co.za/advice .

  55. Gooday
    I am a single mom of a 5 year old daughter who is immigrating to the US next year. My daughters dad is on the Birth certificate, he applied for rights and responsibilities and got them and is supposed to pay maintenance. He disappeared back home to East London and has had no contact with my daughter for 4 years and 7 months. He has in total paid 2 months of 5 years maintenance (his mom was supposed to pay as he was not working).
    No calls, no contact – he has visitation rights but has never used them ..
    I eventually found him last year when i needed to apply for my daughters school next year and needed his information. He has since married and is living in Limpopo.
    What should i do to get the ball rolling as my entire family are immigrating next year?

    1. Good day
      You would require his consent. But if he does not provide it, you would need to approach the court to dispense with his consent. If you do approach the court, it may be a good idea to apply for sole guardianship rights as well. It may be best to speak to a lawyer on this issue now already.

  56. Please can I ask that you remove my name from the subject – I did not realise it would print it

  57. Gooday I have been divorced for 7 years and relocated to Capetown.The dad of my kids has not paid maintenaince for the past 4 years.I have supported my kids.My partner is relocating overseas due to his job and has asked the kids and I to go with.The kids will be attending and international school and we would be financially secure.The father refuses to grant immigration of the kids.

  58. My ex and I separated after 7 years… Whilst in our relationship she courted another man and after a few weeks of separation she was seeing this man. We”ve been apart for 5 months now and recently she advised that if she were to marry this man , our twins would have to leave the country with her as he is not from SA… I’ve read the legal rights I have to defend this matter but our kids are only 5 and if this materializes what could my chances be to have the court decide for them to stay with with me ?

    1. We advise that you see a lawyer ASAP on this issue. Our guess is as good as yours based on the facts provided. The court looks at what is best for the kids.

  59. Hi. What js the cost of bringing such an Application. We have four children. He has 2 with his ex and I have 2 with my ex. Will it be 4 applications or 2 or 1? Also, will the children have a say in this? They are 6, 11, 13 and 15 respectively.

  60. Good Day

    I am currently living with my 2-year-old son and provide for all his needs and necessities (School fees, medical aid, groceries, helper/nanny, etc.) and yet the mother of my son insists that I still pay maintenance of R4000 on top of what I already provide for him and even though she only sees him every second weekend or every weekend if she has time.
    I believe that I am providing a better life than she can for him, and that is why I stay with him.

    We are both on his birth certificate as his parents. My son has her surname and I have been trying to get him to have mine.

    She now tells me that she wants to start a new life and relocate to China with our son, in January and that she will fight me if I refuse to grant permission for him to leave with her. My son and I have a very close bond and we are inseparable. He has also built a very close relationship with my family (Grandmother, aunties, uncles, cousins, etc). I wake up every day next to him and nothing beats the hugs that he gives me throughout the day.

    I know I am rambling on, but how can I fight against the relocation and make sure that my son stays. She keeps saying that she is the mother, so she has more rights…

    Please advise, please help

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