Can a parent appeal a child custody order granted by the High Court or Children’s Court?

In resolving disputes regarding child custody or guardianship (parental rights and responsibilities) matters, a court will usually be approached. The court is also the upper guardian of all minor children within its area of jurisdiction. A parent or interested party may approach the Children’s Court or the High Court when it comes to parental rights regarding a minor child. The High Court, however, has greater jurisdiction when it relates to issues associated with guardianship rights. As demonstrated below, the courts’ decisions may be reviewed by a higher court. However, before approaching the court, the parties should first try to resolve the matter through entering into a parenting plan.

How are child custody court proceedings initiated?

A parent or interested party would make an application to the court. In the High Court, this would be done with a Notice of Motion and Founding Affidavit, served on the other parent or interested party. An interested party would be someone who cares for the child or significantly forms part of the child’s life. For example, a step-parent, grandparent, or aunt. Once the founding papers are served, the other party, the Respondent, would file their answering papers. Thereafter, the Applicant would reply. This is how evidence is provided in the High Court as stated. The process is different in the Children’s Court. In the Children’s Court, forms with supporting documents initiate the process.

What happens at the High Court or Children’s Court?

Once the latter initial processes are done, and all other court processes are followed, the parties would present their cases to the presiding officer. At the end of the matter, the court (the Judge or Magistrate) would give the judgement (ruling) or order. This judgement or order will be based upon all the evidence and arguments presented to it by the relevant parties. There may also be expert reports that were considered. For example, a report of the Office of the Family Advocate, a social worker or private psychologist appointed in the matter. These expert reports are very useful as the court seldom meets with the parties. The experts would interview the parents, children and other interested parties and provide their expert recommendations.

How does the court make its decision regarding parental rights and responsibilities?

After considering all the evidence presented by the parties and experts, the court will have to decide whether or not to grant the relief sought in the Application before it. The court will be guided by the underlining principle of what is best for the minor child and its experiences with regard to the type of matter before it. The court cannot act on emotion or pity. For example, feel sorry for the mother or father. Their decisions must be judicially exercised. Therefore, there would be no merit to state that the Court always finds in favour of a single mother, or a father. Each case would be decided on its own merits.

What happens after the child custody order is granted?

Now, once the court decides was best for the minor child, the court would impose an order. The order may say, for example, that the minor child should reside primarily with one parent, or an interested party, who is not a parent. Or the dispute may be regarding guardianship rights. For example, the court may make an order that both parties’ consent is not required for a passport application of a minor child. No matter what the order is, it must be adhered to by all the parties concerned.

Can the child custody court’s decision be challenged?

Now after the court heard all the evidence presented and arguments by either party and handed down its judgment and order; does this mean that its decision cannot be challenged? The answer is no. An aggrieved party may appeal the judgement. In other words, the party who is not happy with the presiding officer’s decision may approach a higher Court to revisit the matter. The higher Court would have to decide whether or not the court made the correct decision. For example, if a parent is not happy with the High Court’s decision that custody should be afforded to the grandmother; then either parent may appeal that decision.

When is it advisable to appeal?

Before a party decides to appeal a judgement or order of a court, he or she will have to ensure that there are good grounds to appeal it. In other words, the party who wishes to appeal the judgement must be able to show that the Judge misdirected himself or herself and did not apply his or her mind properly. Furthermore, had the presiding officer applied his mind correctly, a different decision would have been reached.

Practical Example of when an appeal may be appropriate

A practical example would be where all the child care experts in the matter agree that the minor child should reside with the father; but notwithstanding what the experts recommend, the court nonetheless ordered that the minor child should reside with the mother. In such a case, it would make sense to appeal the judgement, as all evidence before the court showed that the minor child should primarily reside with the father and not with the mother. On the face of it, it is clear that the judge made an error. The case should, therefore, be relooked at.

Judge’s Reason

On the other hand, the court could have had good reasons why it ordered that the minor child should primarily reside with the mother. One reason could be that the experts who recommended primary care misdirected themselves. They considered not so important factors in granting primary care. For example, the father’s wealth and his string of domestic workers at his home. In other words, they recommended custody to a parent due to him being very wealthy and can afford the best for the child. In the court’s view, the wealthy parent should then pay more child maintenance to the other parent. The mother, in this case, is better suited to care for the child, as she did since birth. The father, although very wealthy, is most of the time working overseas and unable to personally care for the child.

Know the time periods allowed should you wish to appeal a judgment

If you have valid and good grounds for an appeal, then such an appeal should be made. A later article may deal with the specific rules of court and law that relates to an appeal. The purpose of this article is to bring to the reader’s attention that you may challenge an order that relates to parental rights and responsibilities in relation to a minor child. Please note that the rules and laws regarding appeals are very strict and technical. A party would have to comply with certain time requirements before proceeding with the appeal. Therefore, should a party wish to appeal a judgement, he or she should act upon it timeously as provided for in the relevant rules of court. 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 by Telelaw

Can a parent appeal a child custody order granted by the High Court or Children’s Court?

In resolving disputes regarding child custody or guardianship (parental rights and responsibilities) matters, a court will usually be approached. The court is also the upper guardian of all minor children within its area of jurisdiction. A parent or interested party may approach the Children’s Court or the High Court when it comes to parental rights regarding a minor child. The High Court, however, has greater jurisdiction when it relates to issues associated with guardianship rights. As demonstrated below, the courts’ decisions may be reviewed by a higher court. However, before approaching the court, the parties should first try to resolve the matter through entering into a parenting plan.

How are child custody court proceedings initiated?

A parent or interested party would make an application to the court. In the High Court, this would be done with a Notice of Motion and Founding Affidavit, served on the other parent or interested party. An interested party would be someone who cares for the child or significantly forms part of the child’s life. For example, a step-parent, grandparent, or aunt. Once the founding papers are served, the other party, the Respondent, would file their answering papers. Thereafter, the Applicant would reply. This is how evidence is provided in the High Court as stated. The process is different in the Children’s Court. In the Children’s Court, forms with supporting documents initiate the process.

What happens at the High Court or Children’s Court?

Once the latter initial processes are done, and all other court processes are followed, the parties would present their cases to the presiding officer. At the end of the matter, the court (the Judge or Magistrate) would give the judgement (ruling) or order. This judgement or order will be based upon all the evidence and arguments presented to it by the relevant parties. There may also be expert reports that were considered. For example, a report of the Office of the Family Advocate, a social worker or private psychologist appointed in the matter. These expert reports are very useful as the court seldom meets with the parties. The experts would interview the parents, children and other interested parties and provide their expert recommendations.

How does the court make its decision regarding parental rights and responsibilities?

After considering all the evidence presented by the parties and experts, the court will have to decide whether or not to grant the relief sought in the Application before it. The court will be guided by the underlining principle of what is best for the minor child and its experiences with regard to the type of matter before it. The court cannot act on emotion or pity. For example, feel sorry for the mother or father. Their decisions must be judicially exercised. Therefore, there would be no merit to state that the Court always finds in favour of a single mother, or a father. Each case would be decided on its own merits.

What happens after the child custody order is granted?

Now, once the court decides was best for the minor child, the court would impose an order. The order may say, for example, that the minor child should reside primarily with one parent, or an interested party, who is not a parent. Or the dispute may be regarding guardianship rights. For example, the court may make an order that both parties’ consent is not required for a passport application of a minor child. No matter what the order is, it must be adhered to by all the parties concerned.

Can the child custody court’s decision be challenged?

Now after the court heard all the evidence presented and arguments by either party and handed down its judgment and order; does this mean that its decision cannot be challenged? The answer is no. An aggrieved party may appeal the judgement. In other words, the party who is not happy with the presiding officer’s decision may approach a higher Court to revisit the matter. The higher Court would have to decide whether or not the court made the correct decision. For example, if a parent is not happy with the High Court’s decision that custody should be afforded to the grandmother; then either parent may appeal that decision.

When is it advisable to appeal?

Before a party decides to appeal a judgement or order of a court, he or she will have to ensure that there are good grounds to appeal it. In other words, the party who wishes to appeal the judgement must be able to show that the Judge misdirected himself or herself and did not apply his or her mind properly. Furthermore, had the presiding officer applied his mind correctly, a different decision would have been reached.

Practical Example of when an appeal may be appropriate

A practical example would be where all the child care experts in the matter agree that the minor child should reside with the father; but notwithstanding what the experts recommend, the court nonetheless ordered that the minor child should reside with the mother. In such a case, it would make sense to appeal the judgement, as all evidence before the court showed that the minor child should primarily reside with the father and not with the mother. On the face of it, it is clear that the judge made an error. The case should, therefore, be relooked at.

Judge’s Reason

On the other hand, the court could have had good reasons why it ordered that the minor child should primarily reside with the mother. One reason could be that the experts who recommended primary care misdirected themselves. They considered not so important factors in granting primary care. For example, the father’s wealth and his string of domestic workers at his home. In other words, they recommended custody to a parent due to him being very wealthy and can afford the best for the child. In the court’s view, the wealthy parent should then pay more child maintenance to the other parent. The mother, in this case, is better suited to care for the child, as she did since birth. The father, although very wealthy, is most of the time working overseas and unable to personally care for the child.

Know the time periods allowed should you wish to appeal a judgment

If you have valid and good grounds for an appeal, then such an appeal should be made. A later article may deal with the specific rules of court and law that relates to an appeal. The purpose of this article is to bring to the reader’s attention that you may challenge an order that relates to parental rights and responsibilities in relation to a minor child.

Please note that the rules and laws regarding appeals are very strict and technical. A party would have to comply with certain time requirements before proceeding with the appeal. Therefore, should a party wish to appeal a judgement, he or she should act upon it timeously as provided for in the relevant rules of court.

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

 

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Advocate of the High Court of South Africa – Cape Town

Not many people know about the advocates’ profession. They hear of them, see them on television and read about them in newspapers. But what are they, and what do they do? To answer some of these questions, we got hold of Advocate Muhammad Abduroaf a practicing advocate from Cape Town, Western Cape, to assist us in unpacking this much misunderstood profession.

Advocate Muhammad Abduroaf – Cape Town

Advocate Muhammad Abduroaf is an admitted advocate of the High Court of South Africa. He holds chambers in the Pinnacle Building, 33 Burg Street, Cape Town, South Africa. He has been practising as an advocate for much over a decade and holds a wealth of experience on the ins and outs of the profession. Advocate Abduroaf has an LL.B and LL.M (Master of Laws) Degree on his shoulders. To learn more about the life of an advocate, please read on.

Advocates of the High Court of South Africa

Advocates play a very important role in society. They advise and represent their clients in complicated legal issues on an array of matters. Although advocates usually appear in the Higher Courts (High Court, Supreme Court of Appeal and Constitutional Court etc.), they do on occasion appear in the magistrates or lower courts and other forums. In order be become an advocate, you are required to have the necessary academic training in the form of an LL. B degree (Bachelor of Laws). This degree usually takes no less than 4 (four) years to complete at an accredited South African university. Furthermore, only a judge in the High Court can admit you as an Advocate after filing the necessary application. Many advocates then go on to form part of a society of advocates. If you wish to become and advocate, you would need to file your application at the High Court in the area where you reside, attach to it the necessary documents, and set the matter down for hearing when the High Court hears such applications. Admissions of attorneys, advocates, notaries and conveyancers usually take place on the first Friday of each month in the High Court. The Judges who preside over such applications are usually the Judge President and a less senior judge. Once you are admitted as an advocate of the High Court of South Africa, your name would be added to the roll of advocates.

How do advocates of the High Court get work?

Advocates receive their work from attorneys. In other words, a person from the public cannot directly instruct an advocate to do work for him or her. There are however certain exceptions. However, from August 2018, advocates with Trust Accounts may take on an instruction from a member of the public. An attorney’s intervention would therefore not be required. Under the latter scenario, the client would act as the attorney, do all the work the attorney would usually do, and then instruct the advocate to do what she does best. Sticking to the current legal position, the role of an advocate is closely linked to that of an attorney. The Attorney would meet with, and initially consult with the client, take instructions, and request a deposit of some sort. The deposit would be paid into the attorneys Trust Account. Should the matter require an advocate, the attorney would prepare a brief (or case file), with all relevant information in it and forward it to the advocate. The advocate would then act on the brief or instruction of the attorney and bill the attorney accordingly for services rendered in the case. If for instance the attorney did not request a deposit from the client beforehand, and nonetheless instructed the advocate; the attorney is still obliged to pay the advocate her fee. That would be a risk the attorney is taking.

What type of work does advocates do for attorneys or clients?

Advocates would usually do work that the attorney’s practice does not cater for. An attorney is usually a general legal practitioner, who runs a law office. This would entail meeting with clients on a regular basis, taking calls, writing letters, filing documents at court etc. As seen above, attorneys also need to prepare briefs for advocates and pay them. Therefore, an attorney can be seen as a case manager when it comes to dealing with an advocate, and cases in general. Therefore, you would never see an advocate writing a letter of demand.

Court work in the Magistrates and High Courts

An Advocate would be briefed to draft pleadings (court documents) as well as legal opinions. This type of work is very focused and requires a few hours at a time to be set aside for it. Advocates then also need to prepare for trials. In this regard, the case needs to be studies, strategies formulated, and possible questions needs to be drawn up. It takes a lot of time to work out what are good questions to be asked in cross examination of witnesses. The right question, can be the deciding factor in winning or losing a case. Therefore, an advocates office cannot be burdened with daily administrative tasks which attorneys best do. Arguments in legal cases in the Higher Court or Magistrates Court At the end of a court case, lawyers need to provide arguments to court as to why their case should succeed. Now let’s say there were five witnesses that were called to provide evidence in a divorce case. Each of them provided evidence on the witness stand for about a day. At the end of evidence presented, and the close of each party’s case, the advocate needs to go back to his chambers to prepare closing arguments. She needs to focus and apply her mind in finding the most convincing arguments based on the evidence presented in order to succeed in her case. She will bear in mind that there is an advocate who may try to discredit her arguments should they be weak or incorrect. In motion or application procedures, evidence is provided in affidavit form. Therefore, the parties do not go on the witness stand and say what happened. They do so in an affidavit and submit it to Court. A typical case where motion procedure is appropriate would be Child Custody matters. Once all the parties submitted their affidavits to court, the parties’ legal representatives would file, what they term, heads of argument.

Legal Opinions on Legal Matters or Court Cases

What advocates are often asked to do is to draft opinions on legal matters. Opinions are very useful if you would like to know if you have a winning case beforehand, or what the law says about your specific situation. A lot of time gets spent on drafting an opinion. This is so as the nature of the legal advice required in the opinion is mostly complicated. It is always advisable to obtain an opinion before litigating or taking a matter to court. Spending some money on a well drafted opinion can save you a lot in the future. This is especially so if you do not have a solid case at the outset. Therefore, should you lose your case, you would have had to pay your lawyers as well as the lawyers for the other side. This could all have been avoided if an opinion on the merits of success in your matter was provided.

What do advocates charge attorneys or clients for their services?

An advocate has to charge a reasonable fee for her services. However, what is reasonable depends on the facts of each case. An advocate with years of experience, or an expert on a specific aspect of law, would obviously charge much more than someone who has limited experience in a specific branch of law. It could also be that the new Advocate on the block may even take much more time to learn the law and figure things out. But in general, depending on your years of experience as an advocate, and the nature of the service provided; would determine the fees charged. We trust above brief summary of what an advocate is and what she does, provided by Advocate Muhammad Abduroaf was useful. Visit this website again soon for more interesting articles on the legal profession and family law. We are conveniently situated at The Pinnacle, corner of Strand and Burg Street in the CBD, Cape Town, South Africa. Make use of our online appointment system which is efficient and stress free. Call our offices for an online appointment today.
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