18 Dec 2013

Litigation Update, Single Parenting and Traveling

Practice Area(s): Litigation |

Divorcés and/or single parents are often confronted with a few difficult questions:

  1. can I travel abroad with the minor/child/ren?
  2. can I travel within the country with the minor child/ren without the other parent's consent?
  3. can I move for work and /or other purposes within the country with the minor child/ren without the other parent's consent?                                                     

As a general proposition, parents of a minor child, whether born in wedlock (and in certain circumstances, out of wedlock), are immediately conferred with equal and joint rights and responsibilities in respect of said child upon the birth of the child.

This denotes that, again as a general proposition, any major decisions made in respect of the minor child should be made jointly and/or with the due consideration of both parents' opinions. However, the parent with whom the child resides primarily (otherwise known as the "primary care giver") is however not bound to obtain the other parent's consent – merely take into consideration hisher views.  The overriding factor that the courts always give precedent to is: what is in the best interests of the child, and, as is often the case in "single parent homes", each parent has a different view of what's in the best interests of their minor child.

The general rule, subject to what is set out above, applied by the courts is that the primary care giver gets to make the day to day decisions pertaining to the child and his/her general well being. The Courts have gone further to state that a primary care giver does not need the permission of the other parent to travel within the country with the minor child, nor do they need the other parent's consent to move to another city/province for work and/or other reasons with the minor child, unless a court order or agreement with the other parent prohibits them from doing so.

Travelling abroad is an entirely different matter. Both parents must consent to the removal of the child to a foreign jurisdiction. If one parent withholds consent (which is their right to do so) this will obviously prevent the parent wishing to travel abroad with the minor child from doing so, and to override this, the first parent will need a court order permitting such travel. 

There are obviously caveats to every set of circumstances and the courts will consider each set of facts and what is in the best interests of the minor child before making a final decision.


Matrimonial Dept:

Estelle de Wet 031 575 7505 and dewet@wylie.co.za

Candice Eve-Friis 031 575 7506 and eve@wylie.co.za

Kate Oosthuizen 031 575 7542 and koosthuizen@wylie.co.za