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

Family law legal matters can be very stressful. This is so whether you live in Pinetown 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 Pinetown. 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 Pinetown or any other city in South Africa.

What to do before visiting the Pinetown Children’s Court

Before you approach the Children’s Court in Pinetown, 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. Pinetown 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 Pinetown 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 Pinetown Children’s Court

The Pinetown Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Pinetown 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 Pinetown 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 Pinetown.

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 Pinetown Children’s Court

Once you complete the Form A and submit it to the Clerk of the Pinetown 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 Pinetown 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 Pinetown Children’s Court

Once the Pinetown 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 Pinetown 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, Pinetown, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

1. The Applicant’s non-compliance with the requirements of forms, service, manner of service and time periods provided in the Uniform Rules of this Honorable Court be condoned insofar as necessary;
2. Prior to any proceeds of the sale of portion 19,346, Koppersfontein, Western Cape (the property), being paid to the Respondent:
   • the Transferring Attorneys shall retain the sum equal to the outstanding debt of the former joint estate of the parties referred to in clause 3.1.3 of the Consent Paper (the debt), which was made an Order of the Regional Court for the Regional Division of the Western Cape, held in Cape Town, on 24 October 2023, under case number 165/2023 (the divorce Order) and utilise it to settle the debt;
   • The Transferring Attorneys shall retain an amount equal to the sum of all payments made by the Applicant and/or debited from his Standard Bank Account calculated from 01 November 2023, which was used to pay the Respondent’s half of the debt, and reimburse the Applicant therewith on behalf of the Respondent;
3. The motor vehicle referred to in clause 4.1.2 of the Divorce Order, being a 2011 Hyundai Ix35 2.0 Gls/Executive, with registration number CAA 412805, shall be retained by the Applicant as his sole and exclusive property for which right the Applicant shall forthwith pay the Respondent the sum of R 3 661 (three thousand six hundred and sixty-one rand); and
4. Costs of this Application; and
5. Further and/or alternative relief.

• inform the Applicant’s Legal Practitioner within 10 (ten) days of receipt hereof of your intention to do so; and
• fifteen days after you have so given notice of your intention to oppose the Application, to file your answering affidavit, if any; and further;
• that you are required to appoint in such notification an address referred to in rule 6 (5) (b) at which you will accept notice and service of all documents in these proceedings.