21 Sep 2020

Immigration and Nominating a Guardian for your Child

by Kate Oosthuizen, Partner, Durban,
Practice Area(s): Child & Family |

In a previous article, we covered the importance of nominating a guardian for your children in your will.

In short, if you have a will that designates a guardian for your children, the court will look to that document in appointing a guardian. If you die intestate (that is, without a will) the court may determine who would be the best person to take care of your children, or your children would be placed in the care of the State. It is for that reason that it is important to plan ahead, especially in these difficult times.

However, there are additional considerations for protecting your children in the event of your death. One such consideration is whether you have nominated a guardian who lives in another country because either they, or you, have immigrated. This is by no means impermissible, but there are certain factors to consider. Firstly, if you are a South African citizen, South African law will apply to your estate upon your death. If you immigrate, you can stipulate that South African law will apply to your estate in your will. However, if you reside permanently in another country and die intestate, the law of that country will apply to your estate.

Secondly, a discussion with your choice of guardian regarding the responsibility essential. The guardian should be willing and able to take on the care of your child. In the event of litigation, it is important to bear in mind that a local court may be reluctant to appoint a foreign guardian to care for your child.

There may be many reasons for this, such as: a distrustful relationship between countries, existing family in South Africa, a view that a South African child should be raised in South Africa, a lack of familiarity between nominated guardian and child. There may also be legal difficulties with the immigration of your children to the nominated guardian’s country. Accordingly, the nomination of a guardian should be made with care and an amendment to your will considered should a potential immigration issue arise. If there is an immigration concern, it is recommended that the necessary research is done in advance of finalization or amendment of your will, and that professional advice be sought. This will give you an opportunity to troubleshoot and make an alternate arrangement if it is desirable to do so.

Notwithstanding what is set out in your will. It is possible in terms of the Children’s Act for any interested person (who does not have to be a blood relation) to apply for parental rights and responsibilities in respect of a child. The court will make a decision as to the best interests of the child. However, your wishes are a critical factor that the court will take into account. It may be prudent to provide reasons for appointing a foreign guardian in your will, or in the form of an appendix to your will, although this is not a strict requirement. If there is a dispute, the courts or immigration authorities in the foreign country will seek to determine what is in the best interests of the child.

Your documented views would be an important source for the court and the court will most likely use this document as a primary reference. Your reasons could include: your relationship with the guardian; a character reference for the nominated guardian; the reason why your child would be well suited to a life in the foreign country (or should return to South Africa, as the case may be); as well as financial, medical and educational matters. In addition to your first choice of foreign guardian, you may also wish to nominate an alternate and/or a temporary guardian pending any immigration issues. If your chosen guardian resides in a foreign country, there may immigration red tape and/or litigation that needs to be dealt with before your child may leave the country. In the intervening period, the appointment of a temporary guardian could ensure that your child does not have to become a ward of the State. Should it be factually or legally impossible for the first-choice guardian to take up the mantle of guardianship (for example, if the guardian were to predecease you), your second-choice guardian would serve as a suitable backup.

At the end of the day, you are estate planning for your children and you are best placed to determine who should see to their continued well-being should you no longer be in a position to do so.

Points to consider when estate planning for your children:

  1. Nominate a guardian for your children.
  2. Discuss the nomination with the guardian.
  3. Research any potential immigration issues.
  4. Obtain advice from an experienced estate law and/or immigration attorney. You can also seek the assistance of an attorney in the foreign country.
  5. Nominate an alternate guardian for your children.
  6. Make sure to deal with any potential immigration issues.
    1. If your first choice does not live in the same country as you and your children, it is recommended that your alternate guardian does.
  7. If you have chosen guardian from another country:
    1. your reasons for choosing the guardian should be recorded.
    2. consider appointing a temporary guardian.
  8. Update your will timeously if there is a material change in the circumstances of your chosen guardian, in terms of relocation or otherwise.