The Court Order says my minor child’s mother has custody, but my daughter primarily lived with me since she was a toddler. What can I do to legalise the situation? The mother is now demanding that the order now be followed – 5 years later.

[video width="1920" height="1080" mp4="https://www.ourlawyer.co.za/wp-content/uploads/Child-Custody-Visitation-and-Contact.mp4"][/video] At the time of a divorce or separation, the parents of a minor child would usually agree on where the minor child would primarily reside. If they cannot come to an agreement, the Court would make that decision for them. If the parents were never married, one of them may have approached the Court. This is to deal with their parental responsibilities and rights.

Parents not following Court Order

What often happens is a Court would order that one parent has primary care over a minor child, but that specific parent does not take on that responsibility. In other words, the minor child would live primarily with the parent who does not have custody. The parent who has custody would then only occasionally have contact with the minor child. This is so despite the Court Order stating that the minor child should primarily live with him or her. This becomes problematic, as the Court Order says one thing, but the parents are doing the opposite.

Parenting disagreements despite a Court Order

The Child Custody Court Order and its compliance

What can a parent do under the latter situation?

The relief sought

What would the Court decide regarding custody?

How do I obtain contact, custody or visitation to my child? I need some advice and assistance.

Issues of child custody, visitation or guardianship rights are usually difficult for parents to deal with. Parents have an inherent right and duty to form part of their child’s lives. Here we refer to parental rights and responsibilities.  However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interests. More often than not, when parents are divorced, separated, or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children. These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights. With some advice, your situation may become easier.

What are Parental Responsibilities and rights to a child?

When do parents need to enter into a Parenting Plan?

When should parents approach the Child Custody Court? High Court or Children’s Court

What is the Children’s Court?

What is the High Court?

What are the serious parental issues the Court looks at?

Child Abuse

• Child abuse has many facets. It is not only physical but psychological and emotional a swell.

Unfit parenting

•  Not all parents are fit enough to care for a child primarily. This is especially so if there is a history of irresponsible parenting.

Living Conditions

• The law in no way discriminates against parents based on their living conditions. However, it is a factor to consider in Child Custody Cases.

Psychiatric disorders

• Psychiatric disorders in many cases play a role in deciding how care and contact should be exercised. If the condition is bad, a court would have to factor it in when making its decision.

How does the Court come to its decision?

I Appealed my divorce court’s decision regarding care and contact for my two minor children to the High Court. I was successful.

After a 12-year marriage, which was in community of property, and raising two minor children, I was compelled to initiate divorce proceedings due to severe issues, including gambling, alcohol abuse, and infidelity on my husband’s part. This caused me to leave the marital home with my minor children three years ago. Since our separation, I have been the sole caregiver for our two minor children, ages 10 and 11. My primary concern is their well-being, and I have dedicated myself to their care and upbringing.

Initiating the divorce proceedings

Instituting divorce proceedings against him was the best thing I could have done for myself. He did not take this lightly and immediately defended the divorce proceedings. This was unfortunate, as I believed we could have amicably resolved the divorce. The divorce, in my view, should have been a simple one. Although we were married in a community of property, we did not have many assets. An immovable property involved a house that needed to be sold, and the bond would have to be paid so that we could have shared the sale proceeds. None of us have pension funds, and there is little debt in the joint estate. The only issue was what type of contact my husband would have with the minor children after the divorce.

The primary caregiver of the minor children

There was no dispute regarding the minor children remaining in my primary care. At the same time, I do not believe it will benefit the minor children if the father has limited contact with them. Despite our marriage problems, my husband has always been an excellent father to my minor children. They are very fond of him and him of them. Furthermore, I have spoken to the minor children regarding the divorce, and they agree that they would want to remain in my primary care.

My husband fighting for shared care of the minor children

After instituting divorce proceedings, my husband decided that he wants to have shared care over the minor children. This never made sense to me. Firstly, although he was always in their lives, he was not their primary caregiver or cared for them like a primary caregiver would. I was the one who attended to them from birth, fed them when they were babies, took them to school, assisted them with their homework, and so on. My husband was always there, playing with them and communicating with them. He would take us as a family out on the weekend to the beach for entertainment, and it was always around. However, should the minor children fall ill, I attended to them. They will come to me first if they require any assistance with schoolwork, homework, extramural activities, etc. Therefore, it would not have benefited the minor children to be in my husband’s care for half the month. At the same time, my husband, due to infidelity, was involved with other people, and therefore, I do not believe it would benefit the minor children to be exposed to his lifestyle and, at the same time, be cared for by him. However, I accept that the minor children would have to meet his new partner as she would form part of their lives. Therefore, I had no problem with him having contact with the minor children every second weekend and half of the school holidays.

Presenting my husband with a parenting plan

My attorney at the time presented my husband with a parenting plan. The parenting plan, in my view, was fair. It allowed my husband to have contact with the minor children every day of the week after school for about an hour or two. It also allowed him to have contact with the minor children every second weekend from after school on a Friday until 5 pm on Sunday. He also would have contact with the minor children for half of the long and short school holidays. He would also see the minor children on Father’s Day, Christmas Day, and other special days. On his birthday, he would also have contact with the minor children.

My husband refuses to accept my parenting plan

Unfortunately, my husband disagreed with my attorney’s parenting plan and said he would not move away for shared care of the minor children. What this meant was that the minor children would live with me for one week and with him the following week, and this would alternate until the school holidays when we would share the school holidays 50-50. It has never made sense to me because during our marriage, my husband was never available to care for the minor children, and he did not know how to assist with the homework. On top of that, the minor children did not want to be in his primary care during the week.

Seeking assistance from experts

To resolve this issue, my attorney enlisted the assistance of a childcare expert. The expert assessed what would be in the minor children’s best interest regarding care and contact after the divorce. The expert recommended that care and contact be as outlined in my attorney’s parenting plan, as outlined above. The minor children would see the father every day of the week, half the school holidays, special days, and every second weekend.

Father being unhappy with the expert’s recommendations – Approaching the Office of the Family Advocate

The father of the minor children was still unhappy with the expert recommendation. We then approached the Office of the Family Advocate for assistance office. They conducted an investigation and concluded that it would not be in the minor children’s best interest for the father to have primary care over them or for us to have shared care of them as he proposed.

The matter proceeded to Trial

Following the trial in the magistrate’s court, where I presented evidence supporting my position, the judgement was for a shared care regime, a decision I respectfully disagree with. This went against both experts and would not be in the minor children’s best interest.

Appealing the divorce court’s decision to the High Court

My attorney then appealed the decision to the High Court. On appeal, the court followed the recommendations of the childcare expert at the office of all the family advocates. The High Court was not convinced that the magistrate made a fair decision, as clearly, based on the facts I presented, the experts said it would not be in the minor children’s best interest for a shared care regime.

Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court

Should you require assistance with an appeal to the high court, Supreme Court of Appeal, or constitutional court, feel free to contact the firm of Adv. Muhammad Abduroaf.