What do you do when you want to move overseas and your ex doesn’t want to give permission for your child to go with you? This is exactly what happened to Sunette* “My ex and I have a terrible relationship. It was a terrible time in my life. As a father, he has not been very involved.” When her new husband received a great job opportunity in Australia, she was torn. “I thought, he’s never going to let us go. He will just make it as difficult as possible.”
There’s a common misconception that if you’re not married to your child’s other biological parent, then you can’t leave South Africa. Not so, according to migration lawyer David Dadic. “The misconception generally stems from the requirement of most governments that in order for one parent to emigrate, he or she requires the other biological parent’s consent to the emigration. Often, and because of, the fractured relationship between the parents, the remaining parent is uninclined to give the necessary consent (even when the emigration is unquestionably in the best interest of the child), leaving the migrating parent with a severe sense of frustration and hopelessness.”
Fortunately, the common misconception is just that, and the migrating parent does in fact have several options available to him or her to facilitate their migration with their child, should the remaining parent resist giving the necessary consent.
Court Order
The most common recourse in situations such as this is for the migrating parent to make an application to court seeking a court order that he or she have the sole decision-making role as to the child’s migration, thereby disposing of the need for the consent. These applications can be quite cumbersome, particularly when there is much acrimonious history between the biological parents. Additionally, the motivation that the child’s best interest is being best served by leaving South Africa, and then growing up in Australia away from the remaining parent, needs to be very well evaluated. So, considering that success of this application may ultimately affect your entire migration it’s sensible to instruct lawyers who are well versed in such applications.
However, all is not lost. “Recently, there have been many cases where the migrating parents have successfully obtained the court orders necessary to either force the remaining parent to consent to the emigration or disposing of the consents altogether,” says David.
Fundamentally the court must decide what’s in the best interest of the child – either to stay or go – but it’s these recent cases that have largely turned the tide in favour of the migrating parent.
Agreement
Most split parents will know that the practical administering of a child’s care is ultimately decided between the parents by an agreement. Even after many months or years of ugly litigation they are eventually able to come together and through a formal agreement decide on things such as maintenance, contact, schooling etc. Parents will also know that, because the agreement is usually made an order of court, should one of the parents breach their obligations that parent then becomes susceptible to further court orders (and related legal costs) forcing their compliance.
In the way that general child care issues are agreed to between the parents so can any issues regarding emigration. The parents can regulate, and agree on, how often the child will telephone or Skype call the remaining parent, how often and for what duration the child will come back to see the remaining parent or in fact that parent coming to visit the child. This agreement can also, as with those ordinarily done between parents, be made an order of the South African court.
For Suzette, the road ahead is a long one. “My ex won’t give us consent, so now we are turning to the courts to let us go. I have a great lawyer that’s helping us. The frustrating thing is that my husband had to go to take the job, so we are here on our own while we wait.”
So, if you’re finding yourself in the predicament where you have the opportunity to raise your child or children overseas, but are having issues in getting their biological parent to agree, don’t feel disheartened and give up on your dreams, you are most certainly not without options. “But be aware that because the mirroring of the court orders from South Africa can be somewhat complex it’s best to instruct as lawyer who has experience in local and international law,” concludes David.
*Name changed to protect identity
About Pathway Lawyers and Migration Agents
Headed up by practice principal David Dadic (MARN 1785371), a vastly experienced multi-jurisdictional lawyer, Pathway’s lawyers are qualified and experienced in the South African and Australian legal systems, and also registered with MARA. Our capable and reliable team of migration consultants can assist you with all matters related to your migration to Australia, whether legal or personal, whether in Australia or in South Africa. We are also able to offer advice on business investor visas. For this reason, only Pathway can offer you truly tailored and unrivalled bespoke legal and migration services that best fits your personal circumstances
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