Child Custody and Relocation – Live Questions taken and answered by Adv. Muhammad Abduroaf

Posted on 11 February 2025 by Telelaw

Family Law matter and legal representation by attorneys or advocates. What are common questions asked?
What follows are some frequently asked questions regarding legal representation and family law matters.
What is the right of mothers in South Africa?
In South Africa, mothers have several important rights concerning their children, particularly in matters of custody, care, and parental responsibilities. Here are some key rights:
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.
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.
Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.
It’s essential for mothers to be aware of their rights and seek legal advice if they encounter challenges in exercising them.
Can a mother keep the child away from the father in South Africa?
In South Africa, a mother cannot unilaterally keep a child away from the father without a valid legal reason. Here are some important points to consider:
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.
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.
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.
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.
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?
In South Africa, both parents generally have equal rights over a child, as the law emphasizes the best interests of the child. However, specific rights can depend on factors like custody arrangements and parental responsibilities:
Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
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.
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.
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.
Overall, while mothers and fathers have equal rights, individual circumstances and legal agreements can influence specific rights and responsibilities. Legal advice is recommended for parents navigating custody and access issues.
Who qualifies for legal aid in South Africa and how can one apply for it?
In South Africa, legal aid is available to individuals who cannot afford legal representation. Here’s a breakdown of who qualifies and how to apply: Qualifications for Legal Aid
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.
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.
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.
How to Apply for Legal Aid
Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
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.
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.
Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.
How does pro bono work in South Africa? Pro bono legal services in South Africa refer to legal work undertaken voluntarily and without charge, aimed at assisting individuals or communities who cannot afford legal representation. Here’s how pro bono work functions in South Africa: Key Aspects of Pro Bono Work
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.
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.
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
How Pro Bono Work is Organized
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.
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.
Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.
How to Access Pro Bono Services
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.
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.
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.
Benefits of Pro Bono Work
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.
Overall, pro bono legal services play a crucial role in promoting equality and justice in South Africa.
What is the difference between an advocate and an attorney?
In South Africa, the terms “advocate” and “attorney” refer to different roles within the legal profession. Here are the key differences: Advocate
Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.
Attorney
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.
Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
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.
Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.
Summary In essence, attorneys are the first point of contact for clients and handle a broad range of legal work, while advocates specialize in courtroom representation and litigation. The two roles complement each other within the legal system.
Can a client pay an advocate directly?
In South Africa, it is generally not standard practice for clients to pay advocates directly. Advocates are typically retained by attorneys, who then handle the payment arrangements. Here are some key points regarding this process:
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.
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.
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.
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.
It’s advisable for clients to clarify payment arrangements with their attorney or advocate upfront to avoid misunderstandings.

Posted on 11 February 2025 by Telelaw

I would love to have contact with my child on Father’s Day. Her mother is refusing me contact. What does the law say when it comes to the rights of a father?
Every year, the World celebrates Father’s Day. In 2019, it was celebrated on 16 June, coinciding with Youth Day in South Africa. It is a very special day not only for fathers but for the children concerned. When we refer to children, we are not only referring to kids or toddlers. Even grown-up children celebrate Father’s Day with their respective fathers. In some families, Father’s Day is being celebrated by three generations of offspring. This article, however, relates to Father’s Day in the context of minor children spending time with their fathers on that special day.
The Father
We will not go into the technical legality of what makes you a father. A child who has been adopted is for all intents and purposes the child of the adoptive parent. Even if the child was not adopted, or you are not the biological father of the child, if the child refers to you as a father, then the celebration of Father’s Day would apply to you. Here a specific example would be step-parents. Now let’s move on to the issue of what rights does a father have to have contact with his child on Father’s Day. But before we can do that, we need to have a look at the Children’s Act 38 of 2005. Let us start off by looking at what the law says regarding parental responsibilities and rights of fathers. You will note that the law applies differently when it comes to married and unmarried fathers. However, the principles are the same.
Unpacking the law
The purpose of this article is to correctly outline the law applicable to the rights of fathers in relation to their children. In this case, we shall make extensive reference to the Children’s Act. A father can, therefore, have a look at the various sections of the Children’s Act, unpacked below and apply it to himself. Let us start off with a concept of parental responsibilities and rights.
Parental responsibilities and rights of married fathers
Section 20 of the Children’s Act deals with the parental responsibilities and rights of married fathers. It states: The biological father of a child has full parental responsibilities and rights in respect of the child— (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at— (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. This section is straight forward. If you were married to the child’s mother, you automatically have full parental responsibilities and rights in respect of the child. In short, you do not have to be married to the mother at conception. Parental responsibilities and rights of unmarried fathers Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. It states: (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child— (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother— (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. The application of this section can be a bit technical. However, it seems that if a father was involved in a child’s life, he acquires parental responsibilities and rights. Now let us move on to what is meant by the term “parental responsibilities and rights”. Parental responsibilities and rights Section 18 of the Children’s Act deals with parental responsibilities and rights. It states the following: (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right— (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must— (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including— (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c). This section is extensive. However, it is clear that if you have parental responsibilities and rights in relation to a child, you would form part of the child’s life. Moreover, you would be part and parcel of important decision-making in the child’s life. With regard to Father’s Day, a father having parental responsibilities and rights in relation to a child should have contact on that special day. As it is clear from the above, the law looks at what is best for the child. And it would be best for the child to celebrate Father’s Day with his or her father. Now let’s move on to the best interests of the child principle.
Best interests of the child
Section 9 of the Children’s Act states the following: Best interests of child paramount.—In all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied. There you have it. The law does not look at the interest of the parents or other third parties. The law looks at what is best for the child. Now let us move on to the best interests of the child standard.
Best interests of the child standard
With regard to the best interests of the child standard, section 7 of the Children’s Act states the following: (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely— (a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. (2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child. The Children’s Act refers to a variety of factors above. At the end of the day, what is best for the child is looked at.
Definition of “Care”
Before we end this article, we feel that it is important to deal with the aspect of care in the Children’s Act. What is meant by care? The Children’s Act defines “care” as follows: “care”, in relation to a child, includes, where appropriate— (a) within available means, providing the child with— (i) a suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; (f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound relationship with the child; (i) accommodating any special needs that the child may have; and (j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;
Conclusion on the rights of a father on Father’s Day
From the above, it is clear that the law does not discriminate between fathers that were married to the mother and those who were not. What the law is only concerned with is what is best for the child. Various factors are looked at and those are outlined above. At the end of the day if it is in the child’s best interests to have contact with the father on Father’s Day; the law would enforce it.

Posted on 11 February 2025 by Telelaw

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