Child’s passport and international travel after divorce

What do divorced parents need to know about travelling with their children?

Children of divorced parents often say one of the unintended benefits of the divorce is twice the holidays. Although agreeing on holiday contact can be contentious for parents, divorce can mean the child spends almost the entire school holiday period on vacation. But what do parents need to know about travelling alone with their children? What documents are needed for international travel? Are any changes needed to the child’s passport?

Custody and guardianship

The Children’s Act no longer refers to “child custody”, replacing the term with “care”. (A child is not property to be possessed but a person to be cared for.) Nevertheless, “custody” is still used in conversation, therefore for clarity we will define the difference between custody and guardianship. South African courts normally grant guardianship to both parents as part of the divorce settlement, even if one parent is granted physical custody, i.e., their home is the child’s main residence. In certain circumstances, the court may grant sole guardianship to one parent or someone who is not the biological parent. Guardianship is an adult’s right and responsibility to:

• Manage a child’s interests
• Manage any assets or financial aspects of the child’s life
• Assist the child in legal or contractual situations
• Give consent to the child’s medical treatment, marriage or adoption
• Give consent for the child to travel out of South Africa

It is this final responsibility that comes into play if one parent wants to travel internationally with the child.

Domestic travel

Let’s look first at holidays within South Africa. If you are taking your child to another province to enjoy our beautiful beaches, mountains or game parks, or to visit relatives, you don’t need any official documentation. But you should obtain the other parent’s consent, even though it not needed formally. Hopefully, you have a parenting plan which defines how holiday time is shared and any other conditions that need to be considered (for example, if a child needs medical treatment at certain intervals this will need to be accommodated when the child is away from home). You should inform the other parent of your itinerary, your accommodation and contact details, and any other relevant information. 

Try to maintain regular contact with your co-parent. Schedule video chats or phone calls. Children, particularly if they are small, who are used to seeing the other parent regularly may feel distressed if contact is cut off.

Respect the terms of your parenting agreement and have a good time!

International travel

If you want to leave South Africa with your child after your divorce, things get a little more complicated. All children travelling abroad need not only a valid passport, but also an unabridged birth certificate. This lists the names of the mother and father of the child. If one of the biological parents named on the unabridged birth certificate is not present at passport control when you are leaving the country, a parental consent agreement (PCA) from the absent parent must be produced, documenting consent for the child to exit South Africa. However, the Department of Home Affairs has recently made life much easier for parents, whether married or divorced. When you now apply for the child’s passport, the system automatically extracts the details of the child’s parents from the National Population Registry and prints the unabridged birth certificate with the details of the child and parent(s) at the back of the passport. If you have one of these new passports for your child, you no longer need to present a separate unabridged birth certificate. But you continue to need the PCA.

What if your ex refuses to provide consent? You may apply to the court for consent. The court will consider whether or not consent was withheld reasonably. For example, if you want to take your child to a malarial area and they are too young for anti-malarial medication, the other parent’s objection may be entirely reasonable. On the other hand, they may refuse to sign the PCA purely to spite you. The court will consider the best interests of the child and grant consent via a court order if appropriate. You must present this court order in place of the PCA at passport control.

Applying for a child’s passport

You may already have a passport for your child. If so, there is nothing you need to do following your divorce other than comply with the procedure described above. However, a child’s passport is only valid for five years, and at some point you will need to renew it. Whether you are applying for the first or subsequent passport for your child, the passport application form must be signed by both parents. and the child and both parents should be in attendance when the application is submitted to your nearest Department of Home Affairs office.  

If you have sole guardianship, you may apply for the passport without the other parent’s presence and signature. If you are a guardian and you are not one of the biological parents, proof of the High Court’s appointment must accompany the application. If the other parent cannot be located or refuses to consent, you can take the matter to the Children’s Court. The Court’s decision must be submitted with the application for the passport.

Passport applications take time, and if you anticipate a dispute about consent and a potential visit to court, you should allow even more time. Don’t wait until the holiday is booked and you are packing your bags to organise your child’s passport.

Do you need an attorney?

SD Law is a firm of attorneys based in Cape Town, with offices in Johannesburg and Durban, who are experienced in family law. We have deep experience of helping couples negotiate the challenges of co-parenting post-divorce. We’ve helped many parents develop workable parenting agreements and plan successful holidays. If you have questions or concerns about your child’s passport or the PCA, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

Further reading:

• Children’s Amendment Bill
• Child custody and guardianship in divorce
• Child care and contact during the holidays…and don’t forget Santa
• Travel Consent When Taking a Child Abroad

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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