Child custody, guardianship and visitation (parental responsibilities and rights) – What do I need to know should I be going through a divorce or separation?

Although it is not ideal, it often happens that parents divorce or break up. Their romantic or spousal relationship may have come to an end, but their co-parenting relationship continues if they have a child together. They need to be the best co-parents possible for their child. This should be the case despite their failed marriage or relationship. [caption id="attachment_8203" align="alignleft" width="300"] The child in the middle. Child Custody disputes between parents, involving the child.[/caption] Sadly, sometimes the civility the parents had for each other does not transcend beyond their divorce or separation. Some parents in this situation have unresolved issues. It then often happens that the child becomes a victim of the conflict that ensures. They often use the child as a pawn to settle unresolved differences. This situation is not in the child’s best interest. What follows are five things that parents should know when it comes to a divorce or separation. This is especially important if there are young children involved. [caption id="attachment_8198" align="alignleft" width="300"] It is often the child who gets hurt the most in child custody disputes.[/caption]

Number 1: The Child’s best interests are of paramount importance.

Number 2: Know your parental responsibilities and rights – Well

Number 3: Don’t rush to the courts of law – This should be your last option

Number 4: Understand that there are now two households – The child cannot be divided into two.

Number 5: Make use of a facilitator – A third party can assist the parties to see clearly for the sake of the child.

Relocation and repatriation of minor children during the South African National lockdown. Is it possible if there is no consent from the other parent?

Many parents before the lockdown had the intention to relocate to another country. It goes without saying that whatever plans they had to relocate at the start of the lockdown, was placed on hold. Having passed day 100 of the national lockdown, things have since changed.  Domestic travel has been allowed under certain circumstances and many people have been repatriated to their home countries. International travel, other than that for repatriation is allowed under certain circumstances. We advise those parents who wish to leave South Africa to consult the relevant regulations and the laws applicable to the country you wish to travel when deciding to leave South Africa.

The high unemployment rate in South Africa due to the National Lockdown

Then there is the issue of unemployment. The South African economy is not in good shape, and many businesses have closed due to the lockdown and COVID-19.  Many people lost their jobs and various forms of income due to the pandemic. Not being able to work, means not being able to pay for accommodation, food, clothing and school fees, to mention a few. Those people who lost their jobs may wish to seek employment and other economic opportunities abroad. For such parents, relocation may be the best option for them and the child concerned. If repatriation is possible, this option may be better.

Gaudian consent is required for the repatriation or relocation of minor children

But what about those parents who may relocate with their minor children, but does not have the consent of the other parent. What can that parent do under those circumstances? As the law stands, both parents who have parental responsibilities and rights of guardianship must consent for the removal of the minor child from South Africa. A mother naturally has guardianship rights over her child. Father’s, on the other hand, would have full guardianship rights over the child if he was married to the mother or if he materially formed part of the child’s life. If he was just part of the conception of the child, and never married the mother, then he would not have any guardianship rights.

If no consent is obtained, then the Court should be approached

If a parent, wishes to relocate overseas, or repatriate with a minor child, and the other parent does not want to consent thereto, then the Court must be approached for the necessary consent. At the end of the day, the court would decide and look at what is in the child’s best interests. Considering the COVID-19 pandemic, this factor would now also be considered. The court would have to consider the state of the pandemic in South Africa, as well as the country to which the parent wishes to relocate, with a range of the usual factors.

Legal Articles on the relocation of minor children

Have a look at the following articles on the issue of relocation of minor children. Passport Application of a Minor Child and Consent – Department of Home Affairs Consent for a minor child for relocation and passport application Frequently asked questions regarding relocation and consent when it comes to minor children I want to relocate with my minor child. what do I need to know with regard to the law? 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

Civil Appeals to the Western Cape High Court

Did you know that if you are not satisfied with a decision in a court matter, you can appeal to the High Court? Someone might appeal a court’s decision for several reasons, typically revolving around the belief that an error was made during the trial or hearing or in the court’s interpretation of the law. Here are the main reasons for appealing a court decision:

Legal Errors

The appellant believes that the trial court made errors in applying or interpreting the law. This could include improperly admitting or excluding evidence or misinterpreting legal principles.

Procedural Errors

There were mistakes in the way the trial was conducted, such as improper procedures that could have affected the outcome. Examples include not following proper courtroom protocol or violating the defendant’s right to a fair trial.

Evidence Issues

The appellant might argue that crucial evidence was wrongly admitted or excluded or that there was insufficient evidence to justify the verdict reached by the magistrate or the judge.

Abuse of Discretion

The trial judge made decisions that are seen as unreasonable or arbitrary, such as unfairly limiting the scope of examination of witnesses or making biased rulings on motions.

New Evidence

New evidence has emerged that could potentially change the outcome of the case. This is more common in criminal cases, where new evidence might show the defendant’s innocence.

Ineffective Assistance of Counsel

In criminal cases, the defendant might argue that their attorney did not provide competent legal representation, thereby affecting the trial’s outcome. Appeals are typically reviewed by a higher court, which examines the record of the proceedings from the lower court to determine if there were significant errors that affected the case’s outcome. If the appellate court finds that errors were indeed made, it might reverse the decision, order a new trial, or modify the lower court’s decision. If no significant errors are found, the original decision is usually upheld.