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Child custody legal advice and services

Child custody is a complex legal matter as it involves a number of factors to consider when handling a child custody case. Judging from our years of experience, we found that the parents involved often lose track of the bigger picture while emotions override. At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law. We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

In doing so, we have constructed a number of family legal articles containing free, expert legal advice. We have used the common issues potential clients come to us with, as a guide as to what address in these articles. For instance, we had a legal a matter in which the grandparents wanted to know what their chances are in gaining custody over their grandchild. The family legal expert then stated the following using the Children’s Act 38 of 2005:

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2     Objects of Act   The objects of this Act are-   (a) to promote the preservation and strengthening of families;   (b) to give effect to the following constitutional rights of children, namely-            (i)     family care or parental care or appropriate alternative care when removed from the family environment;            (ii)     social services;            (iii)     protection from maltreatment, neglect, abuse or degradation; and            (iv)     that the best interests of a child are of paramount importance in every matter concerning the child;   (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic;   (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;   (e) to strengthen and develop community structures which can assist in providing care and protection for children;  (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;  (g) to provide care and protection to children who are in need of care and protection;  (h) to recognise the special needs that children with disabilities may have; and  (i) generally, to promote the protection, development and well-being of children.”  As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?   Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

When it comes to child custody grounds, there are different variables at play. Most times, if the one parent happens to be unstable, the grounds for custody will lean more strongly towards the other parent, understandably so. Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody. Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:
  1. The Law Regarding Children – The Children’s Act 38 of 2005
  2. Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do?
  3. How do I get full custody over my child?
  4. Parental Child Abuse in Custody Cases
  5. Relocate with minor child. Parent Refusing Consent for a Passport
  6. Father being refused contact to his child! What are his rights as a Father?
  7. Father’s Parental Responsibilities and Rights to his Child
  8. Urgent Access to your Children without a Lawyer
  9. Parenting Plans and the Law
  10. What happens in a custody dispute where one parent is mentally ill?
  11. How to win your child custody and access court case – Tips and Tricks
Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter.   Connect with us today and have an appointment made online for you!
Posted on by Telelaw

[caption id="attachment_10806" align="alignnone" width="707"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to the Netherlands with my minor child. The other parent does not want my child to relocate to the Netherlands. What can I do?

The Netherlands is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to the Netherlands, if a minor child will be joining that parent and also relocating to the Netherlands, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to the Netherlands. Before we do so, let us list the various cities and towns in the Netherlands to which you may want to relocate:

Drenthe (province), Meppel, Flevoland (province), Lelystad, Friesland (province), Leeuwarden, Sneek, Gelderland (province), Nijmegen, Renkum, Rheden, Tiel, Zutphen, Groningen (province), Groningen, Limburg (province), Kerkrade, Maastricht, Roermond, Sittard, Tegelen, Venlo, Noord-Brabant (province), Oss, Roosendaal, ’s-Hertogenbosch, Tilburg, Noord-Holland (province), the Netherlands, Den Helder, Marken, Velsen, Volendam, Zaanstad, Overijssel (province), Kampen, Zwolle, Utrecht (province), Soest, Utrecht, Zeist, Zeeland (province), Middelburg, Vlissingen, Zuid-Holland (province), The Hague, Scheveningen, Katwijk, Leiden, Lisse, Rijswijk, Rotterdam, Schiedam, Vlaardingen, Zoetermeer, Caribbean Netherlands (special municipalities), Bonaire (special municipality), Saba (special municipality), Sint Eustatius (special municipality), Aruba (unitary state), Oranjestad, San Nicolas, Curaçao (unitary state), Willemstad, Sint Maarten (unitary state)

(https://www.britannica.com/topic/list-of-cities-and-towns-in-the-Netherlands-2055398)

Why do I require the other parent’s Consent to relocate to the Netherlands?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to the Netherlands. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows:

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).

Now let us explain what Parental Responsibilities and Rights are.

What are parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following:

(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.

Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to the Netherlands. Even if the minor child only wants to go for a short holiday to the Netherlands, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to the Netherlands?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to the Netherlands. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to the Netherlands.

Mother’s Consent for relocation of the minor child to the Netherlands

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following:

19 Parental responsibilities and rights of mothers

 (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

 (2) If-

 (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and

 (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.

 (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to the Netherlands, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to the Netherlands

Section 20 of the Children’s Act deals with 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.

As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to the Netherlands. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to the Netherlands.

Consent of unmarried fathers for the relocation of their minor children to the Netherlands.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section 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.

As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to the Netherlands?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to the Netherlands, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states:

(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).

Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to the Netherlands, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10805" align="alignnone" width="715"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10806" align="alignnone" width="694"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]  

Posted on by Telelaw

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