Ante-Nuptial contract, prenuptial contract,ANC,divorce, legal advice, Cape Town, South Africa
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
Child Maintenance and Support
https://www.ourlawyer.co.za/wp-content/uploads/Our-Lawyer-Consultation.gifEvery Child is entitled to have adequate child maintenance from his parents. This includes the provision of food, clothing, shelter, education and healthcare. These provisions are to be provided by both his or her mother and father. If one parent cannot afford any support, then other the parent would be responsible for the time being. However, support can still be claimed from the child’s maternal and paternal grandparents. What follows are some answers to a few questions on child maintenance.How much is the basic rate or amount of child maintenance?
There is no basic rate for child maintenance. The amount depends on various factors, which includes the needs of the child, the income of the parents, as well as their personal expenses. There are many other factors as well. The law expects parents to contribute based on their means. Therefore, in principle, but not easily applied in practice, if a mother earns double of that the father, and has the same monthly expenses, she would pay double in child support. What is best is for parents to sit down and work out what is fair.What is covered by child maintenance?
A vast amount of provisions is included in the concept of child support. These are not only necessities, it can be luxuries as well. This all depends on the standard of living of the parents, and what the child was accustomed to. This would even more apply if the parents were married to each other, had the child, and then separated. The law would want the child to continue with the standard of living he or she had before the separation, or divorce.How do you determine the amount of child support?
Determining the amount to pay for child support is not an easy one. If things were simple, both parties would earn the same and have the same expenses. However, this is seldom the case. Furthermore, one should also look at the means of the parents, assets and liabilities. Therefore, if a parent does not earn much, but own an expensive piece of real estate, that would be taken into account when determining the amount, he or she should contribute. Once all the figures are on the table, a fair amount should be allocated.When do I stop paying maintenance?
Child maintenance should be paid until the child is self-supporting or sufficient. Although the child becomes an adult at the age of eighteen, many at time, the child is still at school, studying, or trying to find a job. He or she may still claim maintenance from his or her parents. However, once the child becomes self-supporting, maintenance should stop. if there is a child maintenance order in place, such order should be set aside should the child be self-supporting.
Sharing is Caring
This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.