Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Carletonville.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Carletonville
Whether you claim child maintenance in Carletonville, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Carletonville.
The maintenance scenario – Carletonville South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
The Child is seven years old and attends school in Carletonville
The child is cared for by the mother who works in Carletonville
The mother works and earns a Salary of R 10 000
The father sees the child every second weekend. He also lives and works in Carletonville
The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
The father earns a reasonable salary and can afford the R 20 000 – 00 per month
The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Carletonville, it would be the maintenance court in Carletonville. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Carletonville, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Carletonville Maintenance Court?
Once you have been notified of the maintenance court date by the Carletonville Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Carletonville?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Carletonville Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Carletonville Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Carletonville, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Carletonville. Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty Continue Reading

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Bellville.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Bellville
Whether you claim child maintenance in Bellville, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Bellville.
The maintenance scenario – Bellville South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
The Child is seven years old and attends school in Bellville
The child is cared for by the mother who works in Bellville
The mother works and earns a Salary of R 10 000
The father sees the child every second weekend. He also lives and works in Bellville
The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
The father earns a reasonable salary and can afford the R 20 000 – 00 per month
The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Bellville, it would be the maintenance court in Bellville. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Bellville, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Bellville Maintenance Court?
Once you have been notified of the maintenance court date by the Bellville Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Bellville?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Bellville Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Bellville Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Bellville, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Bellville. Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty Continue Reading

Gender-Based Violence (GBV) in South Africa – What are your legal remedies? – Video of Webinar that took place 28 August 2020 and hosted by Adv. Muhammad Abduroaf
Gender-Based Violence is a real and serious problem in South Africa. A lot has been written on the topic, and the problem is ongoing. Our Lawyer’s stance on this issue is that it should be eradicated. This would require the active input of government, the victims and the community. We wanted to continue with the conversation regarding Gender-Based Violence. We, therefore, invited those who have been affected thereby to partake in a Webinar entitled, “Gender-based Violence in South Africa – What are your legal remedies? Our Lawyer had a successful live webinar on this serious topic, whereby victims spoke out. The webinar will be hosted by Adv. Muhammad Abduroaf. The video can be watched below.

Posted on 11 February 2025 by Telelaw

Gender-Based Violence (GBV) in South Africa – What are your legal remedies? – Video of Webinar that took place 28 August 2020 and hosted by Adv. Muhammad Abduroaf Gender-Based Violence is a real and serious problem in South Africa. A lot has been written on the topic, and the problem Continue Reading

How does one get divorced in South Africa? Adv. Muhammad Abduroaf unpacks the legal process in a simplified manner.
Written by Adv. Muhammad Abduroaf – LL.B LL.M Advocate of the High Court of South Africa

Legal Advice on getting divorced

If you want to get divorced from your spouse, I strongly advise that you approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances: – There will be a dispute over care and visitation rights over the child/children; – One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property; – The joint estate is huge or complicated; or – The other party will be making use of legal representation.

If, however, you would like to know the general procedures on how to go about in obtaining a divorce decree; they are listed summarily below. Many rules regulate divorce processes and the summary below does exclude some of them. These include exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. interim arrangements pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to do the divorce yourself.

Summons and Particulars of Claim

A summons needs to be drafted which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing the divorce from, details of the parties, e.g. names, occupation, and address, etc. Every High Court in the area where you live has the authority to attend to a divorce. You may also approach the Magistrate’s Court. Each court has its own rules and procedures. You should then draft a document called “particulars of claim” outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. This particulars of claim you attach to the summons. Once you have your summons and particulars of claim in order, you have to have the summons issued. To do this, make three (3) copies of your set of documents (summons and particulars of Claim) and have it issued at court. Other documents may have to be attached as well.

Issuing and Service of the Divorce Summons

Once you are at the court, go to the clerk/registrar of the court and have your documents issued. The clerk/registrar will sign the summons and provide a case number and write it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) and take it to the sheriff which serves documents where your spouse works or lives. You can ask the clerk/registrar of the court for those details. The extra—copy of the summons and particulars of claim you keep for your file and records.

Notice of intention to defend the divorce

Once the sheriff served the documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons. If your spouse decided not to defend the divorce action, then after two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to do as outlined next.

Plea to particulars of claim in divorces

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agree (or disagree) with which would give everyone an indication of what to prove at court.

Counter Claim in Divorce Actions

Your spouse might want to file a counter-claim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on you as well a counter-claim. A counter-claim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counter-claim in the same manner in which your spouse pleaded to your particulars of claim.

Discovery in divorce cases

While you are waiting for a trial date, and way before the trial, you may ask, or may be asked to provide under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, deeds etc, and which you or your spouse might want to make use of at trial. Once you received these schedules you may inspect and request copies of the documents.

Obtaining a trial date for the divorce

Once you received the plea, without a counter-claim, or have pleaded to your spouses counter-claim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. Please note that certain courts may have other procedures that need to first be adhered to before obtaining a trial date. For example pre-trial conferences before a judicial officer etc.

Divorce day / Trial date (Finalising the Divorce)

If your spouse does not defend the divorce within the period mentioned above, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If however your divorce is defended, a trial should ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the judgment. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced. Advocate Muhammad Abduroaf (Cape Town | Western Cape LL.B & LL.M (Master of Laws) Constitutional Litigation – Advocate of the High Court of South Africa – Member of the Legal Practice Council of South Africa We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

How does one get divorced in South Africa? Adv. Muhammad Abduroaf unpacks the legal process in a simplified manner. Written by Adv. Muhammad Abduroaf – LL.B LL.M Advocate of the High Court of South Africa Legal Advice on getting divorced If you want to get divorced from your spouse, I Continue Reading

Frequently asked questions when it comes to parental responsibilities and rights of parents having issues or difficulties in co-caring for their children.
As things evolve, so does the legal question surrounding child custody, contact and care. For example, not too long ago, children were generally seen as best being cared for by mothers as opposed to fathers. Fathers would usually get custody if the mother was incapable of caring for a child. Now the law focuses solely on what is best for the child under specific circumstances. Therefore, it often happens that primary care is awarded to fathers where there are no social welfare issues involved. Moreover, a lot of attention is given to the voice of the child. This depends on the child’s age and level of maturity. We decided to answer various popular questions on parental rights and responsibilities when it comes to children. Below are 11 popular legal questions and answers Our Lawyer comes across. Further below are some frequently asked questions that you can apply your mind to.
Does a mother have more rights over a child than a father?
The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months.
I am not a working mother. Does that mean that I cannot have primary care (custody) over my child
The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.
Can I refuse the father to have contact with my child if he does not pay child support?
What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?
Can a parent refuse the other parent’s contact with the minor child if there is no court order?
Can the minor child decide where he or she wants to live if the parents are separated?
How can I get full custody of my child without going to court?
Read on to find the answers to the above questions.
Does a mother have more rights over a child than a father?
If the parents are married, then they have equal parental rights and responsibilities over their child. They, therefore, both have to agree on important aspects of the child’s life. If the parents were not married, then the issue is that of whether or not the father acquired full parental rights and responsibilities over the child. In short, this he would acquire, if he was actively involved in the child’s life since birth, and paid child support. As the child would generally live with the mother, she would decide what is best for the child during the time he spends with her, and the father the same when the child is with him. As he would have acquired parental rights and responsibilities, he would have to consent for guardianship issues. For example, an application for a passport or leaving South Africa with the mother. If the parents cannot agree on these issues, they would have to try to agree on a parenting plan. If that turns out futile, the court may be approached.
The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
If a father was not married to the child’s mother, he would only obtain parental rights if he was involved in the child’s life since birth and contributed to the child’s maintenance adequately. This is the long and short of it. Concerning the question above, the father does not have any parental responsibilities and rights. Therefore, he cannot come into the child’s life after 10 years and demand to have contact. This may not be in the child’s best interest. Each case is however decided on its own merits.
Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months
It is very sad if a parent refuses the other parent’s contact with their minor children. It is not only the parent who loses out but the children as well. The bond the children have been developing with the other parent would be severed and needs to be rebuilt again. Although children may not express it, they do know that things are wrong. A child would know that a parent is no longer visiting. One does not have to have a lawyer to assist you in obtaining a court order to see your children. However, it is advisable. If you cannot afford one, you can approach the Children’s Court to assist you. It is not necessary to have an attorney or advocate in the latter court.

I am not a working mother. Does that mean that I cannot have primary care (custody) over my child?

There are many parents out there who are not working and caring for their children. The law does not state that a child should reside with a parent who can afford to maintain him or her. If the primary caregiver of the child is unemployed, the maintenance court can order that the other parent pay adequate child support to the other parent. This would be in the child’s best interest. Therefore, primary caregivers of children should not be afraid to fight to keep their children with them despite them being unemployed. They should approach the maintenance court if the other parent is not paying adequate child support for the minor child. The amount they claim can be all the child’s monthly expenses. In other words, the parent caring for the child would not spend any money on the child as she does not have the means. However, caring for the child has great value in it.

The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.

This question we often receive from mothers who are separated from the child’s father. They feel vulnerable because the father is bullying them into believing that they will get what they want if the mother does not listen to them. This is a sad reality. However, one that nonetheless needs to be addressed. The law looks at what is best for the child. And does not listen to the parent who has more money or more status in society. If it would indeed be best for the child to live primarily with, the father, then the Court would make such a ruling. However, depending on the age of the child, and how he or she is being cared for, if parents separate, the child would usually remain with the parent who primarily cared for the child. As stated, what is best for the child is the deciding factor. Nothing else.

Can I refuse the father to have contact with my child if he does not pay child support?

Child maintenance obligations and the right to have contact with your child are two separate issues. That is why we have the Maintenance Court and the Children’s court. If a parent is not paying child support or adequate child support for that matter, the primary caregiving parent must approach the maintenance court to decide on the matter. The Maintenance Court would then make a ruling as to what is fair under the circumstances. On the other hand, if a parent is paying more than reasonable child maintenance, it does not mean he or she can have more contact with the minor child. In other words, the more he or she pays, the more contact he or she would have. The law does not work that way. If a parent feels that the other parent is unreasonably withholding contact, then he or she must approach the competent court for relief. But at the same time, continue paying child maintenance.

What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?

Parental responsibilities and rights refer to aspects of where the child would live, how contact is to be exercised, maintenance and guardianship issues. Parents should first try to agree on a parenting plan should they experience difficulties in exercising their rights. Difficulties in the sense that they cannot agree to the above-mentioned aspects of parenting. The plan would be drafted with the assistance of a social worker, mediator, lawyer, or another suitably qualified person. If the parents cannot agree on the parenting plan, then they may approach the court to deal with their issues. They may approach the Children’s Court or the High Court. The challenge here is that it can take very long, expensive if you make use of lawyers, and further, you are leaving the decision to the court to decide. If you try to mediate a parenting plan beforehand, you and the other parent are in control of the situation.

Can a parent refuse the other parent’s contact with the minor child if there is no court order?

If a parent has parental responsibilities and rights over a minor child, he or she has the right to form part of the child’s life. A parent, therefore, cannot refuse the other parent reasonable contact with the minor child. This would not be in the minor child’s best interest. However, it often happens that a parent believes that under certain circumstances, the other parent should not have contact with the minor child. This is so, despite both parents having full parental responsibilities and rights over a minor child. This attitude can be dangerous, as we have a situation where one parent believes he or she is the sole decider as to what is best for the child. A child has two parents, and both parents should decide. Therefore, if there is no court order, and one parent primarily cares for the minor child, we would expect that parent to act reasonably and, in the child’s, best interest and not in a bossy and controlling manner. If the other parent feels that the primary caregiver is being unreasonable, he or she should attempt to mediate the matter and for a parenting plan to be entered into. If that does not work, the court should be approached to grant a final parenting order.

Can the minor child decide where he or she wants to live if the parents are separated?

Children are to be cared for and therefore, need their parents to decide what is best for them. Therefore, the answer to the question above is, no. It is not up to the child to decide where he or she wants to reside if his or her parents are separated. The parents must resolve this issue between themselves. The child’s views must be considered, based on his or her age and level of maturity. It sometimes happens where a child resides with one parent, and the other parent wants to manipulate the situation. He or she would try to get the child to get the primary caregiver to agree that primary care is reversed. For example, by promising the child something so that the child would act in a certain way which would change the living arrangements. This is not in the child’s best interests.

How can I get full custody of my child without going to court?

Custody is a factual issue. In other words, a parent can be caring for a child on his or her own for years. In such a case, he or she is exercising sole custody over the child. The parents may even agree that the child remains with one parent. Therefore, in such a case, that parent would have full custody. Therefore, it is not necessary to go to court if you are already exercising sole custody over your child. However, it often happens that parents want to formalise this situation with a Court Order. In such a case, approaching the court is necessary. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Below are some examples of frequently asked questions on the above topic. If they apply to you, feel free to set-up a consultation with us to discuss them.

What are grounds for sole custody?

Is sole custody permanent?

What are the benefits of sole custody?

How do I fight for full custody?

What can be used against you in a custody battle?

What is the difference between full and sole custody?

Can you get child support with full custody?

Can you file for full custody Online?

Can a father take a child away from the mother?

Can you get a free lawyer for custody?

Do you need a lawyer to get child custody?

Can a parent with sole custody deny visitation?

Can I move if I have sole custody?

Can I deny visitation to the father?

Can you go to jail for denying visitation?

Do I have to allow visitation without a court order?

What do I do if my child refuses visitation?

Can I take my child with me if I leave my husband?

What custody arrangement is best for a child?

How do I get full custody of my child in South Africa?

What does it mean to have sole custody?

What is the definition of sole custody?

What does it mean when you have sole custody?

What do courts look for in a custody battle?

How do you act in court for child custody?

Is a custody battle worth it?

What are the benefits of sole custody?

What are good reasons to get full custody?

Can I move if I have full custody?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Is there a difference between full custody and sole custody?

How does a parent get sole custody?

What rights do I have with sole physical custody?

Who has custody if there is no agreement?

Can I see my child without a court order?

Can a father take a child away from the mother?

Can a father take a child from the mother in South Africa?

What percentage of fathers get custody?

Do you have to go to court for custody?

How can I get full custody of my child without going to court?

Can sole custody be taken away?

What is the difference between sole custody and termination of parental rights?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

How much does a custody modification cost?

Can a mother get custody with no job?

What happens when you file for full custody?

How do I get full custody in South Africa?

What can I expect in custody court?

How long can a child custody battle last?

How do I go to court for child custody?

What is the normal visitation for a father?

What is the average custody agreement?

How can a father get 50 50 custody?

How much child maintenance should a father pay South Africa?

At what age can a child choose which parent to live within South Africa?

What age can you legally leave a child home alone in South Africa?

How a father can lose a custody battle?

What can be used against you in a custody battle?

Why do fathers lose custody?

Can a father take a child away from the mother?

Can a mother legally keep her child away from the father?

Can a mother take away a father’s rights?

How can I get full custody of my child without going to court?

What can I do if my child is not given to me for visitation?

Can a parent kidnap their child South Africa?

Can a parent with sole custody deny visitation?

Is sole custody permanent?

Can I move if I have sole custody?

What do courts look for in a custody battle?

How do you prove you should have full custody?

Is a custody battle worth it?

What are grounds for sole custody?

Do you get child support with sole custody?

What are my rights if I have sole custody?

What are the benefits of sole custody?

Is sole custody the same as full custody?

What is the difference between sole custody and termination of parental rights?

What does it mean to have sole custody?

What custody arrangement is best for a child?

What does a father need to get full custody?

Can visitation be denied to a father?

Do I have to allow visitation without a court order?

How can a father lose his visitation rights?

Does a mother automatically have full custody?

How far can I move with full custody?

How can a woman lose custody of her child?

Can a father take a child away from the mother?

How can I get full custody of my child without going to court?

How do I get sole parental responsibility?

What can be used against you in a custody battle?

Why do fathers lose custody?

What age can a family advocate interview?

Can I stop my child seeing his father?

Can a father get away without paying child support?

Can I take my child with me if I leave my husband?

Do I need a lawyer for child support modification?

Can you get a free lawyer for custody?

Do you need a lawyer for a custody battle?

Is a custody battle worth it?

How do you fight a sociopath in custody?

What can I expect in custody court?

What do courts look for in a custody battle?

Can I get married during a custody battle?

How do you deal with a custody battle?

How do you win a custody battle against a narcissist?

Posted on 11 February 2025 by Telelaw

Frequently asked questions when it comes to parental responsibilities and rights of parents having issues or difficulties in co-caring for their children. As things evolve, so does the legal question surrounding child custody, contact and care. For example, not too long ago, children were generally seen as best being cared Continue Reading

Parents with Mental illnesses in child custody and care matters in South Africa
Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to mention a few. Mothers automatically have parental responsibilities and rights of care, contact and guardianship, and fathers may either have it or acquire it. This depends on the facts of the case. The obligation to maintain your child however always applies.

Various factors are looked at when deciding what is best for a child

Having said the above, how parents exercise their parental responsibilities and rights would differ from case to case, especially if the parents are not living together. In such a case, various factors and circumstances will be looked at in determining what is best for the child. As would be seen later, in the case of a dispute in relation to how separated and divorced parents should exercise care and contact, expert advice needs to be considered. What this article deals with is how to resolve the issue of parental responsibilities and rights of care and contact when it comes to a parent having a mental illness or disease.

The child’s best interests in all matters concerning a child

We all want what is best for our children. That includes for them being cared for in the best possible way, either by you as a parent, or the other parent if that is best. Having parents who are mentally sound as caregivers are, therefore, an important aspect when it comes to raising a child. Logical and rational caring would take place under the circumstances. Parents would, therefore, communicate in a sensible way with the goal of caring for the child in the best possible way.

Mental illness in a parenting situation

If a couple lives together, and one of them has a mental illness, the other parent would be in a good position to care for the children and the other ill parent. However, problems arise when the parents are separated or no longer living together. The question is what happens to the child if one of the parents are mentally ill or have a mental disease or disorder? It must be stated that not all mental illnesses and diseases warrant consideration when it comes to the issue of care and contact in relation to minor children. If the mental illness or disease is adequately treated through medication and therapy, then it may not be a factor when it comes to parent’s parental responsibilities and rights of care and contact.

Types of mental illnesses and disorders

There are various types of mental illness and diseases. Some of the main groups of mental disorders are:

mood disorders (such as depression or bipolar disorder)
anxiety disorders
personality disorders
psychotic disorders (such as schizophrenia)
eating disorders
trauma-related disorders (such as post-traumatic stress disorder)
substance abuse disorders

Examples of signs and symptoms include:

Feeling sad or down
Confused thinking or reduced ability to concentrate
Excessive fears or worries, or extreme feelings of guilt
Extreme mood changes of highs and lows
Withdrawal from friends and activities
Significant tiredness, low energy or problems sleeping
Detachment from reality (delusions), paranoia or hallucinations
Inability to cope with daily problems or stress
Trouble understanding and relating to situations and to people
Problems with alcohol or drug use
Major changes in eating habits
Sex drive changes
Excessive anger, hostility or violence
Suicidal thinking

If any of the above-mentioned mental disorders and symptoms thereof would detrimentally affect a parent’s capability to care for a child; then it needs to be considered in a child custody matter. It could, therefore, happen that one parent who had custody over a child, loses it, due to developing or acquiring a mental illness.

How mental illness and diseases may manifest itself in child care and parenting situation

It may be that people with mental illnesses live normal lives as single individuals without any children. They would go to work, partake in sport, and socialize as any other person would. However, when children come into the picture, their mental illness could cause the following to occur:

The minor children are not cared for due to one parent having an obsessive-compulsive disorder of always washing his or her hands. They are therefore not fed on time, bathed nor care for properly;
A parent is violent and abusive towards the children. He may get angry very fast and act violently;
The parent is on strong medication which causes the parent to want to sleep all the time. The minor children are therefore not cared for at all and left to their own devices;
The parent lost all form of rationality and makes illogical decisions when it comes to the minor children, placing them in danger. For example, the parent may decide to take the minor children to walk with him or her to the shop late at night when it is dangerous to do so; and
The parent may suffer from hallucinations and live in a fantasy world. He or she may be guided on how to parent the minor children from “spirits” who visits and communicates with her.

Diagnoses of mental illness in a parent

It often happens that before a couple has a child, there are no apparent signs of mental illness. It may even happen that the parents of one of the parties knows of some underlying mental illness, but does not want to disclose it to the new person in their child’s life. In other cases, it is well known to all that there is a diagnosis of mental illness which is under control through medication, therapy and so on. And then there is the case where the person with the apparent mental illness does not want to seek any help or is in denial.

What happens after the child is born where one parent has a mental illness?

We are not medical doctors, psychologists, nor psychiatrists. However, in our experience, we noticed, in many of the cases we dealt with, that once a couple has a child, the mother’s medical illness surfaces, or becomes worse. The same may apply to the father. This observation could be because those types of matters make it to our office and should therefore not be a general assumption. However, be that as it may, if one parent has a medical illness that could affect her parenting skills, that needs to be looked at. This is so, even though it is not the parent’s fault that he or she has a mental illness. Now the best-case scenario would be for both parents to remain together if one has a mental disorder when there is a child involved. In that way, the child would be raised with both parents in his or her life and they can work as a team. Depending on the symptoms of the medical disorder, the family can live a balanced and fruitful life.

What happens to the child if the parents separate or divorces?

This is where the issues arise. Should the parents’ divorce or separate, the parties would have to decide who is best suited to care for the minor child or children. If the parent with the mental disorder was the primary caregiver of the minor child since birth, it would be hard to consider a change in primary caregiving. The parent with the mental illness may feel that it would be best that he or she care for the child, despite his or her mental condition. This is where things become very complicated and challenging. On the one hand, you have a parent who always cared for the child, but now has a mental illness, and want to retain primary care. On the other hand, you have a parent who was never the primary caregiver but now wants primary care due to the other parent’s mental condition.

Factors to be considered by the court and experts

Various factors come into play. For example, the age of the children, in whose home they will be living in, and also the mental condition itself. For example, if the child is 16 years old, and the mother has a serious mental illness, for the past 10 years, it would make little sense to change the primary residence of the minor child on that factor alone. By now the child would have learned to care for himself with the assistance the mother provided under the circumstances. On the other hand, if the child is 6 years old, and the mother cannot even take care of herself, then under those circumstances, it may be a good idea if the father primarily cares for the child after separation.

How does one resolve the issue of primary care if one of the parents have a mental condition?

Seeing that the condition is a medical one, mental health care experts need to get on board. An assessment would have to be made as to whether or not the child can be cared for by the relevant parent notwithstanding his or her mental condition. If there is no documentary proof, and such is required for court; the problem that one may encounter is that of doctor-patient confidentiality. This may not always be the case. But especially so if the parents were not married or living together. Usually, medical aid statements would give a timeline of the condition and its treatment. This would apply if the parent with the condition is on the other parent’s medical aid. If the medical practitioner is willing to give a report on the patient’s medical condition, and the inability to care for the minor child; things should be easier to resolve. However, if no such report or diagnosis is forthcoming, then things would be a bit more challenging. Either way, even if you have the report confirming the medical condition, and the issue is not resolved, then the court needs to be approached.

Approaching the court in a child custody matter where one parent has a mental illness

Not all cases of mental illness warrant a child being removed from the care of the primary caregiver. Each case is different and it depends on the facts of each one. However, should the mother had primary care, and she refuses to have the minor child reside with the father due to her mental condition, the court, unfortunately, have to be approached. If the father, in this case, has proof that the mother is mentally unsound and unable to care for the minor child, then the court would have to consider such evidence. This could be a report from the treating doctor or some medical records. The court may however not be in a position to decide how contact and care arrangements should be exercised. For this, the court may want the Office of the Family Advocate or a private social worker or psychologist to conduct an investigation and provide a report in the matter. Once the court has the expert report and heard from both parents concerned, would the court be in a favourable position to rule on what is best for the minor child? It does not mean that because the mother has a mental illness that she should not remain the primary caregiver. As outlined above, various factors would need to be considered. Especially the impact the mental illness would have on her caring ability towards the minor child.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Parents with Mental illnesses in child custody and care matters in South Africa Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to Continue Reading

Children born out of wedlock now have the same rights as children born to married couples
The case below was successfully argued by Advocate Muhammad Abduroaf. Because of this case, a mother can now claim child maintenance from paternal grandparents of children born out of wedlock. The case can be found on the link: https://www.news24.com/SouthAfrica/News/Pay-support-its-legit-20031112 . It is also copied below.
“‘Pay support – it’s legit’
2003-11-13 08:29
Willemien Brummer
Cape Town – Children born out of wedlock now have the same rights as children born to married couples, under a ground-breaking High Court ruling made in Cape Town on Wednesday.
Judge Lester Fourie overturned a 1930 court ruling that stated only maternal grandparents of illegitimate children could be held responsible for their upkeep. Mother’s of children born out of wedlock could until now only claim from their own parents for maintenance. Now the paternal grandparent’s of an illegitimate child can also be held responsible for their upkeep. The ruling came after Jade Lee Petersen from Muizenberg approached the Simon’s Town maintenance court for maintenance for her 10-month-old son, Jordan. Jordan’s father, Faghmie Abrahams, claimed he could only afford R200 maintenance per month. Petersen wanted R1 000 per month. She requested that Jordan’s grandparents on his father’s side be ordered to cover the balance. When Petersen was informed that the law did not allow this, she took her case to the High Court. After the ruling, Petersen’s advocate, Muhammad Abduroaf, said the case was not just a victory for Petersen but that it was also a victory for other mothers in her position.” https://www.news24.com/SouthAfrica/News/Pay-support-its-legit-20031112 We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Children born out of wedlock now have the same rights as children born to married couples The case below was successfully argued by Advocate Muhammad Abduroaf. Because of this case, a mother can now claim child maintenance from paternal grandparents of children born out of wedlock. The case can be Continue Reading

Relocating from South Africa with your child – When do you need consent from the father?
Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world to live and continue your life’s journey. This may include a neighbouring country, or on another continent like Europe. Wherever it is, there are a few things to consider should you wish to relocate with your minor child. This is especially so if you are not relocating with the father. If you are the only parent to your child, then this article may not apply to you. This is where we will start off this article.

The other parent when it comes to relocation

If you are a mother and was never married to the father of your child, the father may have guardianship rights. This would be the case even though the father’s name is not mentioned on the child’s birth certificate. This is so as the Children’s Act affords certain rights to unmarried fathers. Therefore, if an unmarried father has parental rights and responsibilities of guardianship, his consent is required. This we deal with next.

Guardian’s Consent for relocation and passport – What does the law say?

The Children’s Act states the following: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c) .

Consent to the child’s departure or removal from the Republic of South Africa and Passport

As can be seen above, section 18(3)(c)(iii) and (iv), read with section 18(5) of the Children’s Act; both guardians’ consent is required for the minor child’s departure or removal from South Africa and for a passport. Therefore, should a mother decide to relocate to Canada, for example, she would need the father’s consent if he is a guardian. Now it is clear that not all fathers are guardians of their children. Here the law differentiates between married and unmarried fathers.

Parental responsibilities and rights of married fathers

Section 20 of the Children’s Act deals with the Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at- (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. From the above, it is a given, that fathers who were married to the mother, as described above should consent for the relocation and application for a passport of the minor child. This is so as full parental responsibilities and rights include the right of guardianship over the child.

Parental responsibilities and rights of unmarried fathers

Section 21 of the Children’s Act deals with Parental responsibilities and rights of unmarried fathers. It states the following: 21 Parental responsibilities and rights of unmarried fathers (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child- (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother- (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b) , the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. Analysing the above, it is clear that only if an unmarried father played a material role in the child’s life, as stipulated, he acquired the parental responsibility and right of guardianship over the child. Therefore, his consent would be required for the relocation and application for a passport.

What if a father does not want to consent to the relocation and application for a passport?

If the father does not want to consent to the relocation and application for a passport of the minor child and he has legal guardianship over that child; section 18(5) of the Children’s Act referred to above finds application. The mother would then have to approach the High Court to dispense with the father’s consent.

Posted on 11 February 2025 by Telelaw

Relocating from South Africa with your child – When do you need consent from the father? Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world Continue Reading

Paternity disputes and Scientific DNA Testing in Child Legal Matters
Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing.

Paternity – Legal Settings

There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity.

Paternity Dispute Scenarios

There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post. Read on to learn more. You may learn something new.

The legal presumption of pater est quem nuptiae demonstrant

Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father. Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes it, they must prove it. This may become an issue during divorce proceedings. The wife may allege that the husband is the father of the child and claim maintenance from him. He would then in his plea state that he is not the father and accordingly not responsible to pay child support. At the divorce trial, he would have to prove that he is not the father. A simple way of resolving the dispute would be through a blood test or scientific DNA testing. Now let’s move on to written law, in legislation and learn some more.

The Law on paternity disputes in relation to minor children

There are two pieces of legislation that applies in relation to paternity issues regarding minor children. It is the Maintenance Act 99 of 1998, in relation to child maintenance matters, and the Children’s Act 38 of 2005, in relation to child legal matters in general. We shall, however, start with the Children’s Act 38 of 2005.

The Children’s Act – Paternity Disputes

The Children’s Act has two (2) sections dealing with paternity issues. The first deals with the Presumption of paternity in respect of a child born out of wedlock and the other, the refusal to submit to the taking of blood samples. We quote them next.

Section 36: Presumption of paternity in respect of a child born out of wedlock

“If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.”

Section 37: Refusal to submit to the taking of blood samples

“If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.”

Create Reasonable Doubt

Looking at the aforementioned sections of the Children’s Act, in a paternity dispute, it is presumed that if parties had sexual intercourse at any time when that child could have been conceived, the male is the father. The father can disprove this by raising reasonable doubt. This can be done by proving that he was sterile, or through scientific DNA testing. If another man comes and says he is the father; we are sure some reasonable doubt may be created. According to the next section in the Children’s Act, if a party refuses to submit to a paternity test, it could affect his or her credibility. Therefore, if someone is truly a parent, or not a parent, and has nothing to fear from the truth, he or she should submit themselves to a blood test. Failing which, it might affect that person’s credibility in the matter. The court could then infer that he or she is lying. Now let’s move on to the Maintenance Act in child maintenance matters.

The Maintenance Act – Paternity Disputes

In our experience, it is the offices of the maintenance courts that deals mostly with paternity disputes. When the father gets called to the maintenance court, to pay child support for a child he does not have a relationship with, in some cases, he would invoke the paternity defence. In other words, he would dispute the paternity of the child. In such a case, he would request a paternity test. Section 21 of the Maintenance Act deals with orders relating to scientific tests regarding paternity. Here we quote the relevant section next.

21 Orders relating to scientific tests regarding paternity

(1) If the maintenance officer is of the opinion- (a) that the paternity of any child is in dispute;(b) that the mother of such child, as well as the person who is allegedly the father of such child, are prepared to submit themselves as well as such child, if the mother has parental authority over the said child, to the taking of blood samples in order to carry out scientific tests regarding the paternity of that child; and (c) that such mother or such person or both such mother and such person are unable to pay the costs involved in the carrying out of such scientific tests, the maintenance officer may at any time during the enquiry in question, but before the maintenance court makes any order under section 16, request the maintenance court to hold an enquiry referred to in subsection (2). (2) If the maintenance officer so requests, the maintenance court may in a summary manner enquire into- (a) the means of the mother of the child as well as the person who is allegedly the father of the child; and (b) the other circumstances which should in the opinion of the maintenance court be taken into consideration. (3) At the conclusion of the enquiry referred to in subsection (2), the maintenance court may- (a) make such provisional order as the maintenance court may think fit relating to the payment of the costs involved in the carrying out of the scientific tests in question, including a provisional order directing the State to pay the whole or any part of such costs; or (b) make no order. (4) When the maintenance court subsequently makes any order under section 16, the maintenance court may- (a) make an order confirming the provisional order referred to in subsection (3) (a); or (b) set aside such provisional order or substitute therefor any order which the maintenance court may consider just relating to the payment of the costs involved in the carrying out of the scientific tests in question.

Costs of Scientific DNA Testing in Child Maintenance Matters

Looking at the aforementioned section, it does not say much about the evidentiary aspect of paternity testing. It basically deals with the costs thereof. However, what is clear is that the Maintenance Court considers issues of paternity disputes and deals with it. Nonetheless, the aforementioned provisions of the Children’s Act would apply to matters in the Maintenance Court. Next, we move on to the issue of whether or not a court can force a party to submit to a paternity test.

Forced or Compelled Paternity Tests

The two pieces of legislation referred to above does not assist us much with regard to the issue of a court forcing a parent to submit to a paternity test. We now need to consider the case law. In other words, what do the courts have to say about this? Most of the older court decisions, do not agree with forcing a parent to submit to a blood/paternity test. However, it seems that things have changed in the past decade. Let us refer to the judgment of LB v YD 2009 (5) SA 463 (T), a Transvaal Provincial Division matter handed down by Judge Murphy less than 10 years ago.

LB v YD 2009 (5) SA 463 (T).

One of the issues, in this case, was that the mother did not want to submit herself to a blood test. Her view, amongst other things, was that it was not in the child’s best interests. The father argued that it was his right to know whether or not he is the father of the child. He further argued that his right to the certainty of paternity outweighs any inconvenience that might be suffered by the mother and the child. With regard to the law, the Court stated the following: [18] The law on the topic of compulsory blood or DNA testing in parental disputes is not satisfactory. There is no legislation which specifically regulates the position in civil cases. Judicial pronouncements on the topic have not been unanimous in their approach to the issues and have differed on the proper legal basis for ordering tests. In relation to the child the courts have relied on their inherent jurisdiction as upper guardian, while in relation to the non-consenting adult some judges have invoked the inherent jurisdiction of a court to regulate its own procedures while others have refused to do so. In all cases the courts have been mindful of the need on the one hand to protect the privacy and bodily integrity of those to be subjected to tests, but on the other hand have asserted the court’s role to discover the truth whenever possible and to make use of scientific methods for that purpose. [23] In short, I agree with those judges and commentators who contend that as a general rule the more correct approach is that the discovery of truth should prevail over the idea that the rights of privacy and bodily integrity should be respected – see Kemp ‘Proof of Paternity: Consent or Compulsion’ (1986) 49 THRHR 271 at 279 – 81. I also take the position, and I will return to this more fully later, that it will most often be in the best interests of a child to have any doubts about true paternity resolved and put beyond doubt by the best available evidence.

[47] The present case is one in which a clearing of the air is called for. Both parties have at various times admitted and denied that the applicant is the biological father. The respondent was intimate with a second party, her husband, within the period of possible conception. The child is barely 1 year old and thus there is no established relationship that might be unduly disturbed or harmed by a determination of non-paternity. If the applicant is established to be the father, the child will benefit in time from knowing the truth and from the applicant’s commitment to her financial wellbeing. The possible stigma of a disputed paternity will also be removed. And, furthermore, legislative safeguards exist for the assignment and monitoring of appropriate parental rights and responsibilities to the applicant, should that prove permissible. I accordingly consider that it will be in the best interests of the child that paternity be scientifically determined and resolved at this early stage. [48] I agree that the order sought by the applicant is the one that should be granted. It is ordered as follows:

The respondent is ordered to submit herself and her minor child Y to DNA tests for the purpose of determining whether the applicant is the biological father of the child Y within 30 days of this order.
Prayers 2 and 3 of the notice of motion are postponed sine die.
The applicant is ordered to pay the costs of the tests referred to in D para 1 of this order.
The costs of this application are reserved.

The numbers in the square brackets denote the number of the paragraph you would find it in the judgment should you decide to make use of it. We agree with Judge Murphy. It is clear that the Courts can and should compel parents and children to submit to a blood test/DNA test when it is in the child’s best interests. Each case is different, and whereby a compelled blood test/DNA test would be warranted in one scenario, it may not be in the other. Nonetheless, with modern technology at our disposal, a simple paternity test is currently less intrusive than it was in the past.

Posted on 11 February 2025 by Telelaw

Paternity disputes and Scientific DNA Testing in Child Legal Matters Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity Continue Reading

Looking for Family Legal Services in Diep River- Child Maintenance, Child Custody, Visitation Rights and Divorce
Here at our law officers, we understand the struggle of your anxious search for family legal services. Most often, you under the impression that you may not find the legal services you require within close proximity. Look no further.
Family Legal Advice Consultancy
We are a family legal consultancy that strive to cater for all your legal needs by offering legal advice and guidance in family law. If you happen to be residing in the Diep River area, then legal advice is still in your favor. Searching for a legal solution is tough enough and we are fully aware of this. With this in mind, we have made our legal advice and legal guidance easily accessible for your convenience. Our online system enables you to make an online appointment for a professional legal consultation within minutes, while in the comfort of your own home.

Price listings for Family Legal Services in Diep River

We have managed to compile a straightforward price list of some of our legal services in which we offer legal advice and legal guidance in. With that being said, we often have potential clients asking us for an overall view of what the service will cost. When it comes to child maintenance, child custody, contested/opposed divorces and so on; then an overview of the cost cannot be provided as this will be depend upon nature and circumstance of the legal matter. See our legal services page for an idea of what some of our legal services will cost.

Legal Advice in Diep River– Family law legal topics

For family law legal topics, we offer legal advice on a variety of family law topics, which include, but is not limited to:

And while our consultation does come at a fee of R800; we have made our free, expert legal advice articles on our website, easily accessible for the layperson. See the following free, expert legal advice articles which was carefully crafted by the legal expert himself. These articles can be found within the following categories:

Child Maintenance

Child Custody

Divorce and Property

So whether you’re residing in the Northern or Southern suburbs, we can assist you in your legal plight. Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation.

Legal consultation – telephonic, face to face or via video chat / Skype legal advice for those residing in Diep River

Are you residing in Diep River and concerned that legal advice and legal guidance may be out of your way? This could never be more far off from the truth. Our professional legal consultancy have taken such circumstances into account and have managed to accommodate for those residing in the Diep River area. Our professional legal consultation can take place by virtue of video chat / Skype, email or telephonic for your convenience. We are currently based at Suit 702, 7^th Floor, The Pinnacle (on the corner of Burg and Strand Street). Do you require an Attorney to handle your legal matter? No problem. Our law offices have built a wealth of legal connections to ease your plight. After assessing your legal matter during the consultation, we can refer you to an Attorney if necessary. However, we have managed to sustain a convenient online operation which will unfold within the following ways:

Call our friendly receptionist and ask to have an appointment made for you online which will only take a minute or two.
You have the choice of deciding whether you would like a telephonic, email, video chat/Skype legal consultation.
Once you call our law offices on 021 424 3487, the receptionist will make an appointment online for you. Thereafter, you will receive an automated email which will contain all relevant details about the legal consultation. The date, time, nature of legal matter and payments methods will be highlighted within the email.
We urge potential clients to read their email well as well as the terms and conditions within the email.
Only once payment has been made, will the face to face legal consultation be confirmed.
Bear in mind that the date and time of the legal consultation is subject to change on either our part or the potential client’s part. Hence the potential client is free to change the date and time should they later find a more convenient date or time.

Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation.

Free legal products if you live in Diep River

Our law offices does not offer pro bono legal services as we are a Family Legal Consultancy that aims at offering expert, efficient legal advice and assistance on child maintenance, divorce, child custody and so forth. We have however, as mentioned previously, made our free, expert legal advice accessible to the layperson on our website. The creators of this website have compiled a “Free Family Law Resources” section, which can be found on our home page. The family law resources are as follows:

You can now enjoy free, expert legal advice at the touch of a button. Call our law offices on 021 424 3487, and have our friendly receptionist make an online appointment for you for a face to face, telephonic or Video Chat/Skype legal consultation. Connect with us today!

Posted on 11 February 2025 by Telelaw

Looking for Family Legal Services in Diep River- Child Maintenance, Child Custody, Visitation Rights and Divorce Here at our law officers, we understand the struggle of your anxious search for family legal services. Most often, you under the impression that you may not find the legal services you require within Continue Reading