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

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

What to do before visiting the Empangeni Children’s Court

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

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

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 Empangeni Children’s Court

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

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

Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you.

Expertise and Specialisation

Personalised Approach

Commitment to Excellence

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• • Tel.: 021 111 0090
  • Email.: [email protected]

The Firm: Advocate Muhammad Abduroaf

High Court matters

• Civil claim surrounding money;
• Interdicts;
• Divorces (Opposed and unopposed);
• Child Custody and guardianship disputes;
• Relocation of minor children;
• Various criminal matters;
• Minor children surname changes;
• Appeals and Reviews; and
• Other matters.

Magistrates Court matters

• Civil claim surrounding money;
• Various criminal matters;
• Interdicts;
• Maintenance Court matters;
• Divorces Court matters (Opposed and unopposed)’
• Children’s Court matter; and
• Other matters.

Constitutional Court

• Appeals

Supreme Court of Appeal

• Appeals and Reviews

Consult with, or Instruct Advocate Muhammad Abduroaf

Family Law matter and legal representation by attorneys or advocates. What are common questions asked?

What is the right of mothers in South Africa?

1. Parental Rights: Mothers have the right to make decisions about their child’s upbringing, including education, healthcare, and religion, especially if they are the primary caregiver or have sole custody.
2. Custody and Access: Mothers can apply for custody of their children, and the courts prioritize the best interests of the child when determining custody arrangements. They also have the right to seek visitation rights if the father has custody.
3. Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
4. Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
5. Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
6. Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
7. Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
8. Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.

Can a mother keep the child away from the father in South Africa?

1. Legal Custody: If the father has legal custody or parental rights, the mother must adhere to any court orders regarding access and custody. Ignoring these can lead to legal consequences.
2. Best Interests of the Child: South African law prioritises the best interests of the child. Keeping a child away from a parent without a justifiable reason (e.g., concerns about safety or well-being) is generally not in the child’s best interest.
3. Valid Reasons: If there are legitimate concerns—such as abuse, neglect, or substance abuse—these should be documented and, if necessary, reported to the authorities or brought before the court.
4. Court Orders: If there are disputes regarding custody or access, it’s advisable to seek a court order to formally address these issues rather than taking unilateral action.
5. Mediation: Engaging in mediation can help resolve conflicts between parents regarding custody and access in a way that considers the child’s best interests.

Who has more rights over a child in South Africa, a father or mother?

1. Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
2. Custody Arrangements: If there is a custody agreement or court order in place, the terms of that order will determine the rights of each parent. For example, if one parent has sole custody, that parent may have more decision-making power.
3. Parental Responsibilities: The Children’s Act outlines parental responsibilities and rights, which include the right to care for the child, maintain contact, and contribute to the child’s upbringing. Both parents typically share these responsibilities.
4. Best Interests of the Child: Courts prioritize the child’s best interests when determining custody and access, which can sometimes lead to one parent being granted more rights in certain situations.

Who qualifies for legal aid in South Africa and how can one apply for it?

1. Financial Means Test: Legal aid is primarily aimed at those with limited financial resources. Applicants must meet specific income and asset thresholds, which are reviewed periodically.
2. Type of Case: Legal aid typically covers civil, criminal, and family law matters, including:
   • Criminal cases where imprisonment may be a consequence.
   • Family law matters, such as divorce, custody, and maintenance.
   • Certain civil cases, such as disputes involving social grants or housing.
3. Merit of the Case: The case must have a reasonable chance of success. Legal aid is not provided for cases deemed frivolous or without merit.

1. Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
2. Complete the Application Form: At the office, you’ll need to fill out an application form. Staff will assist you in understanding the process and requirements.
3. Provide Documentation: You may need to present supporting documents, such as:
   • Proof of income (payslips, bank statements).
   • Details about your assets.
   • Information about the legal issue you are facing.
4. Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
5. Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.

1. Purpose: Pro bono services are intended to promote access to justice, particularly for marginalized or disadvantaged individuals who may be unable to afford legal fees.
2. Eligibility: There are typically no strict eligibility criteria for receiving pro bono services, but organizations may prioritize cases based on need, urgency, and the potential impact of the legal issue.
3. Types of Cases: Pro bono work often covers a range of legal matters, including:
   • Family law (e.g., custody, divorce)
   • Criminal defense
   • Land rights and housing issues
   • Employment law
   • Public interest litigation

1. Law Firms and NGOs: Many law firms, both large and small, have pro bono departments or initiatives. Non-governmental organizations (NGOs) also provide pro bono legal services, often focusing on specific areas of law.
2. Legal Aid Clinics: Some universities and legal organizations operate legal aid clinics staffed by law students under the supervision of qualified attorneys, offering free legal advice and representation.
3. Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.

1. Contact Law Firms or NGOs: Individuals seeking pro bono assistance can reach out to local law firms or NGOs that offer these services. Many firms have specific programs dedicated to pro bono work.
2. Legal Aid South Africa: While this is a separate entity, it’s important to note that Legal Aid South Africa provides legal services to those who qualify based on financial means, and they may refer clients to pro bono resources.
3. Community Legal Clinics: Some communities have legal clinics that provide free advice and assistance. These clinics often focus on specific legal issues and can be a valuable resource.

• Access to Justice: Pro bono work helps bridge the gap for individuals who might otherwise be unable to afford legal help.
• Public Interest: It allows lawyers to engage in matters that benefit society as a whole, addressing systemic issues.
• Professional Development: For young lawyers and law students, pro bono work provides valuable experience and the opportunity to develop their skills while making a difference.

What is the difference between an advocate and an attorney?

1. Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
2. Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
3. Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.

1. Role: Attorneys handle a wide range of legal matters, including providing legal advice, preparing documents, and managing client relationships. They often deal with clients directly.
2. Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
3. Law Firms: Attorneys typically work in law firms or practice independently. They may specialize in various areas of law, such as family law, criminal law, or commercial law.
4. Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.

Can a client pay an advocate directly?

1. Attorney-Advocate Relationship: Clients usually hire an attorney, who will then brief an advocate for specific legal representation. The attorney is responsible for paying the advocate’s fees.
2. Direct Payments: While it’s possible for a client to pay an advocate directly in certain circumstances, this is less common and may require prior agreement. If an advocate is briefed directly (as in some cases of direct access), they may accept payment from the client.
3. Fee Agreements: If a client and an advocate agree on direct payment, it’s essential to have a clear fee agreement in writing, outlining the services provided and the payment structure.
4. Cost Orders: In court cases, if a client wins, the court may order the losing party to pay the legal costs, which could include the advocate’s fees, but these costs typically flow through the attorney.