Advocate Muhammad Abduroaf – Litigation Lawyer, South Africa (Tought fighting lawyer) – Rustenburg
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Questions parents ask in child custody disputes. What are some of the difficulties parents face when dealing with child custody issues and problems?
When parents have issues and difficulties regarding their parental responsibilities and rights, they often go online for answers. These issues can relate to contact rights or guardianship issues. One parent may want to have more contact, and the other parent refuses such a request. Or a parent wants to relocate with a minor child, and the other parent refuses guardianship consent. Whatever the issues are, they need to be resolved in the child’s best interests. Read on for some interesting questions parents ask online.Does the abuse of alcohol affect the outcome of a child custody case?
Abusing alcohol is very dangerous. Not only for you but for your relationship and parenting as well. If a parent abuses alcohol in the presence of a child, then the child is in danger, or at the very least, in a potential neglectful situation. If both parents abuse alcohol, then the case is much more serious and social welfare needs to get involved. On the issue of a child custody case, the abuse of alcohol is material and would play a huge role in the outcome of the case. The extent could be that custody is revoked.What can you not say in a child custody mediation process?
You can say whatever you wish to say. However irrelevant information is discouraged. At the end of the day, you should assist the court with relevant information that would be of use to the mediation process. Sometimes bringing up the past and old issues would not be of much use to your mediation case. Badmouthing and trying your utmost to put the other parent in a bad light could be extremely damaging to your case. Focus on what is important on moving forward.What evidence can you use in a custody case?
In a child custody case, the court needs to know that all relevant information was placed before it. This is so as the court would then be able to make a fair decision. You can use any evidence to prove your case. However, the evidence must be relevant. Dealing with the past or unresolved personal issues won’t be of much use to the court. Focus on the child and how either parent would best be able to care for the child.How do you write a letter to a judge for child custody?
The courts have their own set of rules and procedure. Court procedures are usually commenced with a Founding Affidavit, followed by an Answering Affidavit, and then a Replying Affidavit. After you provided information via affidavit, you would give a copy to the other party. Letters can be provided, but it should be attached to an affidavit as an annexure.Why do fathers walk away after a divorce?
Many marriages are stressful and the divorce is the final chapter. Not all fathers walk away after a divorce. If they do, it may be because they want nothing to do with the ex-wife. If there are children involved, then there would be a limited relationship with the mother. For example, should she have custody, then you may have to pay her child support and so on. Sometimes, the least contact you can have with your former spouse the better. Especially if the marriage was riddled with domestic violence.What are the chances of a father getting full custody in South Africa?
The chances are high if he can prove that it would be in the child’s best interest. It does not mean that you are the father that you are entitled to have full custody. Some fathers never formed part of a child’s life and all of a sudden wants full custody. That does not make sense. The child does not even know the man. Under those circumstances, phased in contact should first take place.What to do if your ex-partner or lover won’t let you see your child?
There may be good grounds why an ex-husband or spouse won’t let you see the child. One could be that the child does not know you, or you are a danger to the child. However, unless there is good grounds to refuse you contact to your child, such contact must take place. The type and duration of the contact may be in dispute. And the mother may set down the terms. If you are not happy with the refusal or the terms, you would need to approach the Children’s Court or the High Court.What can I do if the mother keeps a child from the father?
For a mother to keep a child away from a father, she would need to have good grounds. For example, the child is being neglected by the other parent or is in danger. The father needs to approach the Children’s Court or the High Court. If the child does not know the father at all, and the father is a drug addict, then it may make sense to keep the child away from the father. Each case is different. At the end of the day, parents must do what is best for the child.Who owns the child? The father or the mother?
No one owns the child. However, both parents have a legal obligation to care for the child. A court may grant one parent more rights over the child than the other. For example, one parent would care for the child during the week, and the other parent only on weekends. A court may also limit guardianship rights. For example, allowing only one parent to consent when it comes to a child’s school, passport application or travelling overseas.Who has more parental rights?
Usually, both parents would have equal parental rights. However, a court can limit a parent’s parental rights. If the parents cannot agree on how to care for a child, a court can step in and limit certain parental rights if it deems so necessary. This it would do if it believes that it would be in the child’s best interest. For example, a parent cannot collect a child on weekends because the child is neglected when in that parent’s care.How does child support work if the mother has no job?
If the mother does not have a job, then the father would have to support the child according to his means. However, in deciding what amount the father should pay, various factors have to be looked at. One needs to look at his income, expenses, assets and liabilities.Can a father take a newborn child away from the mother?
He can if it would be in the child’s best interest. Usually, a newborn would be best cared for by the mother. However, if the mother is a big drug addict, or a drunkard and unable to care for the child, it may be ordered that the father care for the child.Can a mother lose custody for cheating in South Africa?
Cheating and being able to care for a child are two separate issues. However, if the cheating affects her ability to care for the child, then it could affect her chances of retaining custody. For example, she is out whole night with different people.At what age can the father take the baby?
It is always best for a child to be cared for by his or her mother once he or she is born. Mothers have a beneficial bond with the child after birth and would be able to provide the child with breastmilk and so on. Under certain circumstances, it may be best that the father cares for a child soon after birth. And in other cases, much later. A father can take custody at any age. Generally, the older the child, the easier it would be. At the end of the day, when deciding when a child should be taken care of by the father, the child’s best interests needs to be upheld.How can a father win a child custody case in Cape Town?
A father can win a child custody case in Cape Town or any city in South Africa if he can prove that it would be best for the child to be in his care. There need to be facts to support a successful custody application. The father should be able to prove that he can care for the child better than the mother and that it would be best for there to be a change in custody arrangements. Earning more, or having a better car or home is not necessarily deciding factors when it comes to winning a child custody case.What is considered an unfit home?
An unfit home is a home where a child is in danger or neglected. For example, there is alcohol laying around or a balcony where the child can easily fall from. Our law expects all parents to be the best parents they can be for the child. Not all homes are the same in South Africa. A fit home for one set of children may not be a fit home for another set of children. At the end of the day, as long as parents try their best to keep their children safe, that should be adequate to call a fit home.How do I find an unfit parent?
Not all parents are fit parents. However, they are the parents of the child and need to care for him or her. Parents should try to become the best parents they can be for their child. As time evolves, they will become better and fitter at it. You may speak to social workers in your area who can advise you where to find an unfit parent.How do you Co-parent with a toxic ex-partner or spouse?
Before a couple had a child, they would usually communicate well with each other. This would continue after the child is born until when the couple separates. At this point, the level of communication they had previously no longer exists. This is when their relationship could become toxic, or at least so for one of the parents. At this point, a child needs both parents to communicate well with each other. This is not only in the child’s best interests, but also would benefit the parents. It would be best to see a family counsellor with your ex to assist in co-parenting if this problem persists.
Posted on by Telelaw
Updated: 16 April 2020
New regulations have been issued on 16 April 2020. Click on the link below: The material change is that you do not have to have a court order or a parental responsibilities and rights agreement or parenting plan, registered with the family advocate. Possession of a birth certificate or certified copy of a birth certificate is now also allowed.Update: 07 April 2020
NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)Latest Directives by the Minister of Social Development regarding the movement of children during the National Lockdown (30 March 2020)
On 30 March 2020, the Minister of Social Development, Ms Lindiwe D Zulu, issued directives in order to prevent and combat the spread of the COVID-19. The directives in relation to parental contact are as follows: (m)Directions to contain the spread of COVID-19 in exercising the care and contact by persons who are co-holders of parental responsibilities and rights during the lockdown period (i) Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from primary caregiver premises to the other; (ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started; (iii) The parent who is not with the child during the lockdown period may, in order to maintain a personal relationship with the child, communicate on a regular basis with the child in any other manner, including telephone or any other form of electronic communication which may also include skype, WhatsApp or video call; (iv)Co-holders of parental responsibilities and rights must communicate with their child or children including communicating what COVID-19 is and the temporary precautionary measures that are applied to contain the spread of COVID-19. Click here to download the directives from the Government site. Below are images are the directives. 
Update: 07 April 2020
NEW LOCKDOWN REGULATIONS REGARDING THE MOVEMENT OF CHILDREN – CERTAIN PARENTS MAY MOVE CHILDREN DURING THE NATIONAL LOCKDOWN PERIOD (7 April 2020)
Posted on by Telelaw
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Kimberley.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Kimberley
Whether you claim child maintenance in Kimberley, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Kimberley.
The maintenance scenario – Kimberley South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Kimberley
- The child is cared for by the mother who works in Kimberley
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Kimberley
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Kimberley, it would be the maintenance court in Kimberley. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Kimberley, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Kimberley Maintenance Court?
Once you have been notified of the maintenance court date by the Kimberley Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Kimberley?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Kimberley Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Kimberley Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles 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, Kimberley, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Posted on by Telelaw