Limits To International Relocation 

It is important to keep in mind that if you travel overseas with a partner, then there will be restrictions regarding your movement out of the country with your child (whether brought to the country with your partner or born on foreign soil). In countries that are party to the Hague Convention, permission from both parents is required to move with your child elsewhere. This may even be the case if there was a written agreement before the move took place regarding the movement of children in the event of a breakup.

Father’s Domicile 

The domicile of the child’s father at the time of marriage is an important factor regarding relocation of a child after a divorce. The Hague Convention upholds the right that the laws inferred at the time of divorce are those in which the father/husband was domiciled at the time when the marriage contract was signed, even if the contract was signed in a different country. This may have far-reaching consequences for children and their relocation. For instance, the power of the prenuptial agreement is limited in the UK, and the courts in the country do not necessarily have to enforce the decisions made in the agreement.

Homebase 

When moving overseas, even with a foreign partner that you love dearly, make sure that you keep a permanent residence in South Africa in the event that you feel you need to move back to the country with your children. When appealing to a foreign court to be able to move back to the country, proving that you have a permanent domicile will greatly improve your chances of relocating. This may be tricky regarding expenses, but co-owning a home with close family members (like your parents) can help you in this case.

Consult a Professional

This is the most important tip! Do not, under any circumstance, attempt to leave a foreign country with your children in tow. You are likely to be found guilty in a foreign court of child abduction according to the Hague Convention international laws. Consult with a legal professional and child custody attorney whether in the country of residence or your domicile country. Don’t be found guilty of a crime when you actually have the best interests of your children at heart.

For more information regarding child custody in South Africa, why not contact Ivan Zartz Attorneys. Make us your first choice regarding all cases of child custody in South Africa. Simply fill out the enquiry form on the contact us page, and we will get back to you.

Take a look at our child custody as well as our Hague Convention page for more information regarding these issues in the country.

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For those countries that have not signed the Hague Convention treaty, there is little that a parent can do to prevent a child from being taken to and removed from said country. As it stands, a parent from an outside country has no legal right to remove their own child from China if the child is living with a parent of Chinese nationality. According to the Hague Convention, which outlined the typical case of international child abduction by a parent, a child cannot be removed from the country of his/her habitual residence without approval from both parents.

Child Custody in China 

The underlying problem regarding child custody in China (and other countries not party to Hague Convention treaties) revolves around the difference of their child custody laws when compared to other states. In China, negotiation is deemed an important factor in conflict mediation, and for this reason the state usually facilitates in matters that are otherwise considered informal agreements.

During cases of international child custody, as well as international child abductions involving China (or other countries not associated with the Hague Convention), it is important that parents wconsider the nationality of the child. For example, if the child is of Chinese nationality, both parents will be required to solve their custody dispute with local Chinese courts. If the child is of non-Chinese nationality, then the child custody dispute must be settled in his country of ‘habitual residence’.

Please consider the laws of those countries of which your spouse is a foreign national before having children. It is the parents responsibility to understand the implications of certain laws with regards to issues involving international child custody disputes.

For more information on international child custody as well as the Hague Convention, make sure you keep checking on the Ivan Zartz Attorneys blog page.

If you require a lawyer that specialises in matters of international child custody, then contact Ivan Zartz Attorneys as soon as possible.

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The ISIS Case

A recent situation occurred in England that perfectly highlights the government’s responsibility, as well as their right, to make decisions regarding the custody of the child and to do so in the best interest of the child. A mother of three from Leicester UK decided to move to an ISIS-controlled region within Syria with her children, obviously to pursue a lifestyle invested in religious ideology and warfare. Her arrest at the airport (on the suspicion of religious radicalisation and affiliation with ISIS) provided evidence of her interest in having her children grow up in the war-afflicted country and under ISIS law.

Child custody services appealed to the court and its judge that he come to a written agreement regarding the lives of the children, and what their futures entailed. The court came to the decision that it was in the best interest of the children to be removed from the custody of their mother, and placed in the care of their maternal grandparents. The woman now faces criminal charges as well as international charges for her affiliation with jihadists.

The Best Interest Of The Child

The police protection order, submitted by airport security, was enforced, and the children were then immediately placed into foster care before being handed to their grandparents. This event highlights the state’s right to ensure that ‘the best interest of the child’ precedent is upheld, and that the courts, as well as the law, should do everything in its power to enforce change in the best interest of the child.

For more news regarding family law, commercial law and debt collection, make sure you keep visiting Ivan Zartz Attorneys Articles page!

Contact Ivan Zartz Attorneys today for the best debt collection and family law legal assistance in the country!

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1. Make sure that you plan ahead with regards to vacation ideas. Most separated parents will have a schedule in place that sets out times and periods in which parents are allowed to take their children on holiday. Follow up on dates with the other parent, and discuss the vacation in more detail a few months before the holiday.
2. Make sure that all the vacation plans and necessary information are provided to the other parent. The other parent has a right to know where their child is staying, who else will be in contact with the child, and where their child is going. Little or no details can be used against you if a matter is brought to court regarding the care and custody of the children.
3. Make sure that you understand the legal and regulatory requirements when travelling abroad with children. Consider the written consent required from both parents, as well as the limiting yet protecting Hague Convention and international child abduction laws. Countries bound by the Hague Convention will require the written consent of both parents. This is one of the most important holiday tips for separated parents.
4. Make sure that the children are aware of the nature of the vacation. They must understand that both parents are supportive of the vacation and that the parent who is not attending the vacation will not be saddened by the fact that the children are going on holiday with the other parent. If this is not communicated the children may feel guilty by going on holiday.
5. Make sure that the children are properly looked after, and all their needs are considered. Medication, health insurance and constant observance on the part of the travelling parent are important for their own legal protection and the wellbeing of their children. Both parents must understand that vacations should not be used as a competitive tool, neither should they be used to alienate the other parent.

The following holiday tips for separated parents will ensure that both parties agree on the holiday and that the children are most likely to enjoy their vacation.

For more information and tips regarding child custody make sure to keep visiting the Ivan Zartz articles page.

If you require a child custody attorney, make sure you contact Ivan Zartz Attorneys today.

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A South African mother, living in Mpumalanga, will now have to return her son to the child’s father who lives in England. This comes after protracted court battle where both the English courts as well as the South African courts have charged the mother to return to the UK. The child, who hasn’t seen his father in two years, was being looked after by his mother in South Africa. The father was not paying maintenance because of his unemployment status due to bad health.

However, according to the Hague Convention, this does not give the mother the right to take her child away from his father, and because the child is British, it is the courts in the UK that ultimately settle his fate. The mother and child will have to resume their time in British courts while they will receive housing and financial assistance from local British council in the interim.

According to the Hague Convention, of which South Africa is a contracted state, the above-mentioned case is otherwise known as an ‘incoming’ case. This means that a child has been illegally abducted and brought into South Africa without consent from both parents. In this case, the father has submitted an application for the child’s return, and the matter will be solved in the British courts.

Ivan Zartz Attorneys is an experienced child custody attorney, based in Gauteng, who specializes in child custody cases with regards to the interpretation of the Hague Convention laws. If you are embroiled in a case of child custody with evidence of the illegal abduction of children to and from South Africa, then contact Ivan Zartz Attorneys today!

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A standing minimal fee of R1500 is required for a consultation at our offices. We DO NOT provide free telephone consultations either. Telephone consultations may be made, but they will be charged accordingly.

Many clients question the charge and label it as exorbitant, but what exactly are you paying for at Ivan Zartz Attorneys?  Ivan Zartz is an industry-leading attorney, with many years of experience. His focus within matters of child custody, dispute resolution, divorce, surrogacy, debt collection and insolvency mean that his advice and council is highly regarded and well-sought. Ivan Zartz is virtually a household name in legal circles within South Africa.

You will also be paying for the services of Ivan Zartz Attorneys’ highly-capable and accomplished team. It is this team of bright and young individuals that allows Ivan Zartz to execute such quick turnaround times regarding clients’ needs. The administration team also helps ensure prompt communication with clients so that Ivan Zartz and his attorneys can continue to achieve desired results.

Please make sure that you are able to pay the required R1500 consultation fee the next time you make an inquiry toward consultation. Not only will you be saving us crucial time during office-hours, but you will be saving yourself the trouble too.

For any additional information regarding matters of child custody and/or debt collection, or if you require a debt collection attorney/child custody attorney within South Africa, contact Ivan Zartz Attorneys today!

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In my practice at present, I have successfully had a children return from England by a mother who without the father’s consent had poisoned the children’s minds to such an extent that she took the children to England and blamed the father for the removal – the mother was discredited and the children were returned to South Africa. The disorder is not only confined to brainwashing by a parent but creating support by the children of the alienating parent’s campaign against the targeted parent.

In another child custody case, a client of mine was accused by his wife whom he was divorcing of playing with a three year old’s penis in the bath tub. Psychologists were subpoenaed on both sides and after a three day trial, the court found that the wife had deliberately frustrated my client’s access and that the court was not convinced with her story or the findings of her psychologist.

On the other hand there are many instances where the cause of the alienation is the alienated parent and not the other party. In a leading child custody case dealing with child alienation the matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of s 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether child custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole child custody. The court went accordingly against the wishes of the child.

Therefore, on account of these tragic cases and frequency of this disorder that I have seen in my practice, I thought I would research the concept of Parental Alienation Syndrome (P.A.S) and give readers of my website a little insight into this disorder. The next blog, posted on Wednesday 22nd July will ask the question “What is Parental Alienation Syndrome?” Read it to find out more.

If you require an attorney to assist you in your child custody case do not hesitate. Contact Ivan Zartz Attorneys today!

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You return from work one day only to find that your partner has left you a note advising you that she has removed your child / children from their home and is now living in London with her mother. She advises you that she does not intend returning to South Africa with the child/children. How do you go about bringing an application for the return of the children to South Africa?

Section 18 of the Children’s Act 38 of 2005 provides that no parent can remove their minor child/children from the national borders of South Africa without first obtaining the written consent of the other parent.

You have a right to launch a court application for the return of the child/ children who have been wrongfully removed in terms of the Hague Convention on the civil aspects of international child abduction to which South Africa is a party.  It is suggested that you would arrange an urgent consultation with an attorney to investigate the circumstances giving rise to the wrongful removal of the child/children and whether the country where the child/ children are residing is a member to the Hague Convention. One needs to take note that certain countries are not members to the Hague Convention such as Zimbabwe, Namibia and Lesotho and Kenya only to mention a few. Speed is of the essence.

If you agreed to the child being removed then you would fail in a court application to have the child returned.

Examples of agreeing to a child being removed are:

• Written consent
• An informed acceptance by the wronged party of the removal of the child such as a verbal acceptance, an acceptance through e-mail or a consistent attitude.

In Central Authority v B 2009 (1) SA 624 (W) – the court states “It has authoritatively been laid down that consent or acquiescence on such an important matter should not be lightly inferred from a party’s conduct. It concerns the state of mind of the person involved and only conduct or expressions unequivocally consistent with consent or acquiescence would suffice.”

Another common defence that is often put forward is that the child was removed because there is a grave risk that the child’s return would expose him to psychological harm or place the child in an intolerable situation. An example of an intolerable situation would be where the child has no permanent home, is living an overcrowded home, the child is not fed or cared for or the child is neglected. An example of psychological harm would be exposing the child to emotional abuse.

Other requirements to be complied with are that:

1. The child is younger than 16 years of age; and
2. The child has been “wrongfully removed or retained” and that the rights of the parent applying for the return of the child, such as his rights to contact, care an access to the child have been violated.

Upon approaching an attorney you will be requested to fill in an application form for the return of a child wrongfully removed/ retained in another country. You will be required to fill in your details, the details of the attorney representing you and the details of the child whose return you are requesting. Furthermore the details of the person who has taken or retained the child wrongfully are required. The most vital information on the form is details of the place where the child is thought to be.

A sworn affidavit by the Applicant with regard to the occurrences that led up to the unlawful removal needs to be attached together with recent photographs of the child, the applicant as well as the respondent in the matter. Certified birth certificates of the child are also required to be attached to the Application as well as any relevant parenting plan or parenting agreement that has been signed by the parties.

These documents are then delivered to the Family Advocate in South Africa who will contact the Family Advocate in the country where the child has been removed and the Family Advocate will then contact the parent who has wrongfully removed the child if the address is known. If his/her address is not known the abducting parent and the children will first have to be traced by the Family Advocate so that notice can be given to them of the application for the return of the child. Once the abducting parent and the children have been located and given notice the Family Advocate will further appoint an attorney in that country and that attorney will liaise with the attorney and client in South Africa.

Once the parent has been contacted, if she does not intend to return the child to South Africa she will file a sworn statement setting out the reasons why she does not intend to return the child.

The person making an application for the return of the child can then make an affidavit in reply.

If there is a dispute the matter is then set down for hearing in the foreign court.

Even if one acts immediately once it is ascertained the parent does not intend to return the child to South Africa it will in my experience take at least 5 months for the matter to be heard in a court.

The matter can either be finalised at this stage or may, in some instances, take several months to be finalised.

Because of the complex nature of Hague it is suggested that the layman utilises the services of an attorney.

The post What to Do If Your Child Is Abducted by Your Partner to Another Country appeared first on Ivan Zartz Attorneys.

Usually parents whose children live with them and are under 16 years of age do not seek the opinion of their children even when making decisions that pertain to them. So when one parent with whom they live packs their bags and those of the child and tells them “we are going to go and live with granny in England” the child is very unlikely to protest.

However, in cases where a child has been wrongfully removed from his/her home by a parent and taken overseas without the permission of the other parent, the courts will hear the opinions of the child who has been wrongfully removed “unless it appears inappropriate”.[1]

For a child’s opinion to have weight in the eyes of the Judge children need to be of a sufficient age in terms of The Hague Convention[2] as well as possessing degree of maturity.

What is sufficient age? “Sufficient age” has not beea defined in the Hague Convention however the older the child the more weight which can be given to his/her opinion. In the

In an English case of Re D (A Child)[3] a Judge stated that “the views of the child should have been canvassed after he had attained the age of seven as by then he ‘had reached an age where it could no longer be taken for granted that it was inappropriate for him to be given the opportunity to be heard’.” The Court listens to any opinions or objections the child may have to be returned to their home, however it is finally the Judge’s decision whether to use such opinions/objections in coming to a decision.[4]

In the United Kingdom there are three ways which a child can express their views to a court. These are:

• Interview with a Cafcass officer
• Speaking to the Judge
• Speaking through a legal representative to put their views forward.

In most legal proceedings an interview between a Cafcass officer and the child is sufficient.[5]

The best interests of the child are always of the utmost importance in any court proceedings where children are involved.

Who are Cafcass Officers?

CAFCASS stands for Children and Family Court Advisory and Support Service. It is an independent body from the courts and other social services. They act as advisors to the Family Courts and put forward the wishes of the children to the courts and ensure that the best interests of children are upheld in all matters. They also provide support and advice to children and their families in adoption and divorce matters.

Dangers of allowing children’s opinions to be heard

Although the wishes of the children are taken into account courts have also warned against children becoming too involved in case. In the case of Re LC (Reunite: International Child Abduction Centre Intervening)[6] the Judge highlighted the fact that children entering into the “arena” of a court case could cause them to adopt a directly confrontational attitude toward the parent applying for the return of the child. It was further mentioned that this could disrupt family relationships which could also the resolution of the main issue being whether the child should be returned to their usual place of residence.

Certain circumstances where a child’s objections will not be thought to be sufficient by the Judge are the following:

• “Where it is apparent that the child is merely parroting the views of a parent and does not personally object at all;
• Where the objection is not an objection to the right thing;
• Where the asserted objection is not an objection at all, but rather a wish or preference.” [7]

What happens when siblings have been abducted and one wishes to return but the other does not?

In the case where siblings are involved there are many conflicting opinions as to what to do. It is not thought to be in the best interests of the children to split them up. In all cases it is thought that it will be intolerable for the non- objecting child to be split from the objecting child.[8]

In the case of Zaffino v Zaffino (Abduction: Child’s Views)[9] it was stated that “the exercise of discretion cannot… properly be made by treating each child in isolation. The child’s place within the family, and the consequences of the exercise of discretion on that child, must be considered.”

In another case of In Re S (A Child) (Habitual Residence and Child’s Objections)[10] it was held that “ the court had been entitled to conclude that the separation of a 12 year old girl from her brother, aged 10, was mitigated by the fact that they were at an age where they would increasingly lead their own lives and that they would in future be able to communicate with each other via Skype.”

It becomes apparent from the above that yet again the court has the discretion to decide whether or not to split up siblings. Although they try to avoid this, when children are older it may be more permissible to split them up as it is very easy for children to communicate with one another as technology has developed so drastically.

Conclusion

From the above it is obvious that the courts have a very wide discretion to take into account or not to take into account a child’s objections. Courts will mainly focus on the nature and strength of the objections, whether the child’s opinion seems to have been influenced by a parent or third party, and whether what the child is requesting or suggesting is indeed in their best interests.

The Court needs to focus on whether the child’s objection is indeed an objection to be returned to their country of habitual residence and not just a general objection. A child’s capacity to judge what is in their medium and long- term interests is relevant to the exercise of the courts discretion.[11] If the only reason for a child’s objections is because it wants to remain with the abducting parent, who is also asserting that he or she is unwilling to return, the Judge is likely to overlook such as objection as the child is simply echoing the views of the abducting parent.[12]

It would appear from the cases that the older and more mature the child is the more weight their opinions carry. All objections have to be valid and have to be with regard to the return to the child’s place of habitual residence.

[1] Re KP (Abduction: Child’s Objection) [2014] EWCA Civ 554, [2014] 2 FLR 660.

[2] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[3] [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[4] JPC v SLW and SMW [2007] EWHC 1349 9Fam), [2007] 2 FLR 900, De L v H [2009] EWHC 3074 9Fam), [2010] 1 FLR 1229.

[5] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[6] [2014] UKSC 1, [2014] 2 WLR 124, [2014] 1 FLR 1486.

[7] Re M Republic of Ireland) (Child’s objections) (Joinder of Children as Parties to Appeal)[2015]EWCA Civ 26.

[8] The Ontario Court v M and M [1997] 1 FLR 475, Re T (Abduction: child’s Objections to Return) [2000] 2 FLR 192.

[9] [2005] EWCA Civ 1012, [2006] 1 FLR 410.

[10] [2015] EWCA Civ 2, [2015] All ER 9D) 56 (Jan).

[11] In Re M and Another (Children) (Abduction; Rights of Custody [2007] UKHL 55, [2008] AC 1288, [2008] 1 FLR 251.

[12] SvS (Child Abduction) (Child’s views) [1993] Fam 242, [1992] 2 FLR 492.

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