During divorce proceedings or a separation from your partner, one of many things to consider is whether the child will have their primary residence with mom or dad.
Primary residence does not mean one parent has more rights and/or responsibilities than the other, it just means that it is where the child will primarily reside. The primary residence can be in South Africa or overseas.
In this instance, we will assume that the child resides in South Africa and you reside overseas. A parent who resides overseas still enjoys the same rights and responsibilities towards their child. This also includes the right to be involved in the child’s day-to-day upbringing, their care and contact.
The Children’s Act of 2005 (“the Act”) plays a huge role in regulating your rights and responsibilities as a parent to the child, as well as the rights of the child.
The Act states in detail that it applies “in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.”
The Act further details the circumstances where a parent and their child live on separate continents. The Act also provides for several factors to be considered in order to ensure that the best interests of the child are applied.
These factors are :-
- The capacity of both parents to provide for the needs of the child, including emotional and intellectual needs;
- The likely effect on the child in the instance of any change in the child’s circumstances, including the likely effect on the child of any separation from a parent;
- The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parent on a regular basis;
- The child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
- The need for a child to be brought up within a stable family environment;
- Guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
- Guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
- Maintaining a sound relationship with the child.
In considering the above-mentioned factors, it is difficult to reasonably apply all of them seeing as you may only physically see your child for one month per year. Consequently, it is evident that you may not be physically present for all your child’s milestones. Therefore, applying these factors would ensure that the best interests of your child are applied.
You would accordingly need to set a routine of engaging with your child regularly over the phone and that your ex-partner keeps you informed of all significant milestones in your child’s life.
However, it is the unfortunate truth that there is no substitute for physical contact, but the small telephonic conversations and the regular updates will have to sustain you and your child’s relationship until the next their face-to-face visit.
This obviously requires your ex-partner to facilitate the contact and failing to facilitate contact whether physically or electronically would require the intervention of the High Court of South Africa.
Should you require assistance with a High Court application, please do not hesitate to contact our offices. We are available telephonically, via email and Zoom.
