I have a parenting plan in place with th...

Asked by Mary on 09-05-2023 16:28:02
Question posted in the Family Law category relating to Gauteng

I have a parenting plan in place with the biological father (he has access for every second weekend along with a maintenance payment), he however has not contributed financially since June 2022. He last visit in person with the child (age 5) was 05 February 2022 and last attempt at telephonic contact on 15 September 2022. The biological father is currently not listed on the birth certificate and the child in registered in my maiden surname. 

We are looking to immigrate and need to obtain a passport for the child and I assume permission to immigate from the biological father. Please could you advise the best approach to this matter. I would prefer not make direct contact with the father since there has been no contact for such a long time.

Message from the Lawyer

Posted by Att. Patrick on 09-05-2023 23:50:30

If the maintenance is set out in a court order, then the father of the child would be obliged to make payment of the maintenance in terms of the court order, and if he doesn't, then two things can happen -

First, he could be held to be in contempt of court if he is proven to be willfully refusing to pay the maintenance,

Second, you could apply to the magistates court for a warrant of execution in respect of the arrear maintenance, and the sheriff could ultimately go around and attach the father's assets to sell them on auction so that you can get paid your maintenance. 

You must keep in mind that the maintenance obligations are separate to his rights of access, so it would be wrong of you to withhold access to your child just because he hasn't paid the maintenance.

The fact that the father is not listed on the birth certificate is not a problem for you, because he has obviously accepted that it is his child. This would however pose a possible issue for your child in later-life when applying for VISAs, travelling, etc. So you should possibly speak to a couple of people about how best to deal with this.

Yes, you will need permission from the father to immigrate. If he won't consent, then you would need to apply to the High Court to gain permission. Given that he has not been involved in the child's life since Feb 2022, and given that he is not maintaining the child, I don't really see what reason he could give to the court to refuse permission. 

I don't think that you should make direct contact with the father now. 

You need to work out what do you want? Do you want the maintenance? Or do you want to apply for a passport so that you can emigrate?

I think that once you work out what you really want, you can take the first step. But what you must also realise is that it might take you 12 months to get the High Court application through for permission to obtain a passport, and then a further period of time with Home Affairs. 

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