Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Oudtshoorn Children’s Court

  Family law legal matters can be very stressful. This is so whether you live in Oudtshoorn or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client. This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Oudtshoorn. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Oudtshoorn or any other city in South Africa.

What to do before visiting the Oudtshoorn Children’s Court

Before you approach the Children’s Court in Oudtshoorn, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Oudtshoorn has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Oudtshoorn Children’s Court for assistance. TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Oudtshoorn Children’s Court

The Oudtshoorn Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Oudtshoorn Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you. Once you arrive at the Oudtshoorn Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2. In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:
  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER
In part D, the following is stated which you need to provide in the form:
  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)
Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Oudtshoorn. TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Oudtshoorn Children’s Court

Once you complete the Form A and submit it to the Clerk of the Oudtshoorn Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow. TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Oudtshoorn Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:
  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests. TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Oudtshoorn Children’s Court

Once the Oudtshoorn Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later. TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided. The above Oudtshoorn Children’s Court Application tips 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, Oudtshoorn, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Posted on by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Oudtshoorn Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Oudtshoorn or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Oudtshoorn. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Oudtshoorn or any other city in South Africa.

What to do before visiting the Oudtshoorn Children’s Court

Before you approach the Children’s Court in Oudtshoorn, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Oudtshoorn has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Oudtshoorn Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Oudtshoorn Children’s Court

The Oudtshoorn Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Oudtshoorn Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Oudtshoorn Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Oudtshoorn.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Oudtshoorn Children’s Court

Once you complete the Form A and submit it to the Clerk of the Oudtshoorn Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Oudtshoorn Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Oudtshoorn Children’s Court

Once the Oudtshoorn Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Oudtshoorn Children’s Court Application tips 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, Oudtshoorn, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Related Post

Child Maintenance Court – What do you have to know to win. Tips and Tricks

[caption id="attachment_8401" align="alignleft" width="640"]Child Maintenance Child Custody of Parents[/caption]

advice-child-maintenance-child-custody-divorce

Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance. Read on above a Successful Child Maintenance Appeal before the Full Bench Argued by Adv M Abduroaf

Parental Maintenance Obligations

Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.

Processing the Maintenance Application

When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to.  

Getting the non-paying parent to the maintenance court

After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses. Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago.  

The maintenance enquiry before a maintenance officer

The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.

Denial of paternity

What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.

Role of the maintenance officer

Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next.  

The maintenance investigator

Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.

advice-child-maintenance-child-custody-divorce

The formal enquiry before a Magistrate

Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.

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I am a Muslim and married. What is the best legal advice you can provide to a Muslim Couple getting divorced in South Africa?

Although Muslim marriages in South Africa are not formally legislated yet, Muslims married in terms of Muslim Rites are afforded broad recognition and protection when it comes to the enforcement of their rights. However, until such time that parliament passes laws that deal explicitly with Muslim marriages and the legal consequence thereof, South Africans would be dependent on Courts to enforce their rights. It should also be noted that if a South African Court makes a ruling that affects Muslim marriages, it does not mean that the Court ruling is Shariah Compliant. The laws of Islam cannot be tainted by secular Courts, no matter how good their intentions are. Therefore, before approaching a South African court to deal with an aspect of your Islamic marriage, ensure that you first obtain the proper Sharia advice.

When is the best time to seek legal advice from an attorney or advocate if I want to divorce my spouse?

The best time to seek legal advice is before the actual talaq of faskh. You would then know your rights regarding your property, personal maintenance (alimony), child maintenance, child custody and so on. You and your spouse can then discuss these issues and come to an amicable agreement. This is the first prize, as no one wants to spend money on lawyers’ fees to resolve simple issues after divorce. It may be ideal to utilise an attorney’s services or advocate to draft a legally binding settlement agreement. If you and your spouse cannot agree regarding the item mentioned above, then unfortunately, those issues would have to be resolved in a court of law. This is what this article deals with.

How do we best deal with the issue of jointly owned property after the Islamic Divorce?

If you and your spouse own jointly owned property, for example, a house, you can continue owing it together after the marriage. However, if one of you wants to sell it and the other does not, you would need to approach the High Court to terminate the joint ownership. This can be a very long and expensive process. It would entail applying to the court for an order outlining how the property must be sold. It may first be sold via private sale and, if not possible, via a public auction. The court can also order how the proceeds should be divided. It is best to consult with an attorney or advocate in this regard.

What is the best way to resolve care and contact issues regarding minor children after a talaq or faskh?

For any legal matter, it is best to resolve issues without the need to approach a Court of Law. In the case of a Muslim marriage where there are minor children involved, it may be the best option. This is because children are negatively affected if parents litigate over them. However, it must be done if it is the only option because parents cannot see eye to eye. However, before considering litigation regarding your children, it is best to try to mediate the dispute. We suggest using a professional like a social worker, psychologist, or suitably qualified person to resolve the dispute. Most of the time, it works.

How do I apply to the Children’s Court for contact with my child?

To apply for child custody in South Africa, you may approach the Children’s Court in the area where the child resides or where the custody dispute arose. The process involves completing a form, which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you claim custody. It would be best to give reasons for your claim and any evidence that may support your case. Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the best interests of the child and may also appoint a social worker to investigate and report on the child’s circumstances. The court may also order mediation to try and resolve the dispute amicably. It is important to note that custody disputes can be emotionally draining and stressful for all parties involved, especially the child. It is, therefore, advisable to seek legal advice and support from a family law attorney or advocate who can guide you through the process and ensure that your rights and the child’s best interests are protected.

What is the best way to resolve child maintenance issues regarding minor children after a talaq or faskh?

In South Africa, each parent must maintain their child according to their mean. This applies to all parents, whether or not they were married to each other in terms of Muslim Rites, Civil law, or not married at all. Before parents venture into a Faskh or Talaq, they need to discuss whether they will be paying for the minor children after they divorce. They must discuss who will pay the school fees, extra-mural, and medical expenses. If the child will be living with the mother primarily, then the father would need to pay the mother cash maintenance as well. This needs to be resolved as soon as possible. If the parents cannot resolve the issues regarding child maintenance amounts themselves, the parent claiming maintenance would need to approach the maintenance court as soon as possible. There is no need to wait until the marriage has first been resolved.

How do I apply for Child Maintenance if I am married Islamically?

The process to apply for child maintenance is the same for everyone. Whether or not you are married or not. You would need to approach the maintenance court in the area where the child resides or where the maintenance defaulter resides. The process involves completing a form which can be obtained from the court or downloaded from the Department of Justice and Constitutional Development’s website. You must provide details of yourself, the child, and the person you are claiming maintenance from. You will also need to provide proof of your income, the expenses incurred for the child, and the expenses of the person from whom you are claiming maintenance. Once the application has been submitted, the court will set a hearing date, and both parties must attend. At the hearing, the court will consider the financial circumstances of both parties and make a maintenance order, which will determine the amount of maintenance that needs to be paid.

I require legal assistance after my Talaq or Faskh. What is the best way to obtain legal advice or assistance?

If you require legal advice or assistance before or after your Talaq or Faskh, schedule an appointment using the link www.ourlaywer.co.za/advice. We would be able to advise and assist you where necessary.

Posted on by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Brakpan Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Brakpan or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Brakpan. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Brakpan or any other city in South Africa.

What to do before visiting the Brakpan Children’s Court

Before you approach the Children’s Court in Brakpan, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Brakpan has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Brakpan Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Brakpan Children’s Court

The Brakpan Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Brakpan Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Brakpan Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Brakpan.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Brakpan Children’s Court

Once you complete the Form A and submit it to the Clerk of the Brakpan Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Brakpan Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Brakpan Children’s Court

Once the Brakpan Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Brakpan Children’s Court Application tips 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, Brakpan, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on by Telelaw

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