Guardianship vs Custody in South Africa - What Parents Need to Know When Travelling Abroad with a Minor

Whether you're planning a family holiday abroad or your child has been invited to compete internationally, navigating the legal requirements for taking a minor outside of South Africa can be more complex than expected, especially for separated or divorced parents.  

This article will explore the key legal differences between custody and guardianship, the documents you need to travel abroad with your child, and the legal remedies available when one parent refuses to consent. 

Guardianship vs Custody 

In South African law, the Children's Act 38 of 2005 moved away from outdated terminology like "custody" and "access," replacing it with "care," "contact," and "guardianship." These terms are often confused but have distinct legal implications. 

Care (Custody) 

This refers to the day-to-day physical care and decision-making about a child's routine, living arrangements, and well-being. A parent with primary care has the child living with them most of the time. 

Contact 

This refers to the right to see, visit or communicate with the child, usually granted to the other parent when one has primary care. 

Guardianship 

This involves significant legal decisions affecting the child's life such as applying for a passport, consenting to medical procedures, or leaving the country. Importantly, both biological parents usually retain joint guardianship unless a court orders otherwise, regardless of who has primary care. 

What Do I Need to Travel Abroad With My Child? 

The South African Children's Act and immigration regulations require that both guardians consent to a child travelling internationally. 

When travelling with a minor (under 18), you must have: 

1. A Valid Passport for the Child 
2. Issued by the Department of Home Affairs. 
3. Parental Consent Affidavit: this affidavit confirms that the non-travelling parent (or legal guardian) consents to the child's travel. It must be signed by the consenting parent, dated within 6 months of the date of travel and accompanied by a certified copy of the consenting parent's ID or passport. 
4. Unabridged Birth Certificate: This shows the names of both parents and is required to verify parenthood or guardianship. 
5. Court Orders (if applicable) 
6. If one parent is deceased, a death certificate is needed. If one parent has sole guardianship, a court order confirming this must be produced. 
7. Letter of Invitation (if travelling for an event or visiting someone): This is sometimes requested to confirm the purpose and duration of travel. 

What If My Ex-Spouse Refuses to Consent to Travel? 

This is where many parents find themselves stuck. Even if you have full primary care, you cannot take your child out of South Africa without the consent of the other guardian. 

Without consent, you risk: 

• Being denied boarding by airlines. 

• Detainment at ports of entry/exit. 

• Legal consequences under the Children's Act and Immigration Act. 

If your ex refuses to consent unreasonably, you can approach the High Court or Children's Court for an order dispensing with their consent. 

You will need to demonstrate that: 

• Travel is in the best interests of the child. 

• You have made reasonable efforts to obtain consent. 

• The refusal is unreasonable or motivated by spite. 

The Court may then grant you sole authority to make the travel decision for the specific trip. 

Conclusion: Plan Ahead and Know Your Rights 

In South Africa, guardianship is not automatically removed just because one parent has complete care or limited contact. Both parents' consent is required for international travel, and failure to comply can result in legal and logistical nightmares at the airport. 

By understanding the legal difference between care and guardianship, preparing the correct documents, and seeking appropriate legal relief when necessary, you can avoid unnecessary conflict and focus on creating memorable experiences with your child abroad. 

Robyn Shepherd | SchoemanLaw Inc

Family Law Specialist 

https://schoemanlaw.co.za/our-services/family-law/