Child custody legal advice and services

Child custody is a complex legal matter as it involves a number of factors to consider when handling a child custody case. Judging from our years of experience, we found that the parents involved often lose track of the bigger picture while emotions override. At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law. We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

In doing so, we have constructed a number of family legal articles containing free, expert legal advice. We have used the common issues potential clients come to us with, as a guide as to what address in these articles. For instance, we had a legal a matter in which the grandparents wanted to know what their chances are in gaining custody over their grandchild. The family legal expert then stated the following using the Children’s Act 38 of 2005:

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows: “2 Objects of Act The objects of this Act are- (a) to promote the preservation and strengthening of families; (b) to give effect to the following constitutional rights of children, namely- (i) family care or parental care or appropriate alternative care when removed from the family environment; (ii) social services; (iii) protection from maltreatment, neglect, abuse or degradation; and (iv) that the best interests of a child are of paramount importance in every matter concerning the child; (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; (e) to strengthen and develop community structures which can assist in providing care and protection for children; (f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; (g) to provide care and protection to children who are in need of care and protection; (h) to recognise the special needs that children with disabilities may have; and (i) generally, to promote the protection, development and well-being of children.” As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child. For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say? Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

When it comes to child custody grounds, there are different variables at play. Most times, if the one parent happens to be unstable, the grounds for custody will lean more strongly towards the other parent, understandably so. Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody. Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:

Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter. Connect with us today and have an appointment made online for you!

Posted on 11 February 2025 by Telelaw

Child custody legal advice and services

At our law offices, our job is to help parties involved keep a level head form a legal perspective and guide them as to what will be the best way forward. Sometimes a matter has been blown out of proportion while the parties involved often expect us to perform miracles – this is not how it works in the world of law.

We have found that executing our legal expertise can become a very complicated ordeal when there is little co-operation. It is however, essential to highlight that the main responsibility of the family legal expert is to advise and guide you with the best way forward from a legal standpoint.

The Children’s Act 38 of 2005 – child access to grandparents

The Children’s Act 38 of 2005

“2 Objects of Act

The objects of this Act are-

(a) to promote the preservation and strengthening of families;

(b) to give effect to the following constitutional rights of children, namely-

(i) family care or parental care or appropriate alternative care when removed from the family environment;

(ii) social services;

(iii) protection from maltreatment, neglect, abuse or degradation; and

(iv) that the best interests of a child are of paramount importance in every matter concerning the child;

(c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic;

(d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;

(e) to strengthen and develop community structures which can assist in providing care and protection for children;

(f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;

(g) to provide care and protection to children who are in need of care and protection;

(h) to recognise the special needs that children with disabilities may have; and

(i) generally, to promote the protection, development and well-being of children.”

As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child.

For more information on this article, see Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?

Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Grounds for full custody – child access, child maintenance and divorce

Having said that, a child access matter will have issues of visitation rights, divorce, child maintenance and drafting of parenting plans. These all go hand in hand when dealing with child custody.

Enjoy some of our free, expert legal advice articles below which could be of help for your when it comes to child custody legal matters. Call our law offices on 021 424 3487 and have an appointment made online for you by our friendly receptionist today!

Legal advice articles – child custody, parenting plans and divorce

The articles below have been well crafted by the legal expert himself for your convenience:

Do feel free to visit our frequently asked questions page on child custody in which you can gain some clarity on the matter.

Connect with us today and have an appointment made online for you!

International Family Law matters, applicable to South Africa
Divorces are not only limited to people living in the same country. Often, you will find that one spouse lives in South Africa and the other in a different country. They want to get divorced but do not know how to go about it. The question now is, which country and which court should divorce them? We regularly receive these types of queries from people living in the Middle East and the United Kingdom. The same problem arises in the case of parents living in different countries, but there are complications regarding contact and access to their minor children. Let’s say, one parent, lives in Cape Town and the other in Taiwan. How does the parent living in Taiwan enforce his contact rights to his child in South Africa? Does he or she approach the court in Taiwan? Or should he or she approach the Court in South Africa? And Lastly, there is an issue regarding child maintenance. What happens in the case where one parent lives in Cape Town and the other in New York? How does child maintenance work? Can the parent living in Cape Town with the children obtain a maintenance order against a parent in New York? This article will deal with the above three topics. Read on to learn more.

South Africans living abroad

South African expatriates are found all over the world. These include the following places:

The United Kingdom
United States of America
Canada
Chile
Taiwan
New Zealand
Japan
India
Brazil
China

Whatever the destination and/or location is, this article would be a useful read. Especially so if you find yourself in an international family law dispute.

We regularly receive enquiries and requests for legal advice and/or assistance from people who have a legal connection to South Africa, but do not live here. This may include an intended divorce, where one of the spouses reside in South Africa, or a child contact issue, where a parent would like to have contact with his or her child living here.

With the advances in technology, providing advice and assistance to clients abroad becomes very easy, and convenient. There is Skype, WhatsApp Video, FaceTime, to mention a few that can bridge the communication gap. But for now, let us deal with the legal issues involved and fly away with divorces.

I live in the United Kingdom, and want to divorce my spouse living in Cape Town

Many people believe that because they got married in South Africa, any court in South Africa can divorce them. Or because they lived in Cape Town, that the Western Cape High Court in Cape Town can divorce them, even though they live in London at present. That is not the case. You will see why not. The issue is that of the Jurisdictional authority of the relevant Court.

Jurisdiction of the Divorce Courts in South Africa

Section 2(1) of the Divorce Act, states the following when it comes to the Court’s Jurisdiction: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is- (a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or (b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.”

So, as you can see, you need to have fulfilled one of those latter requirements. Therefore, if you and your spouse moved to England, to settle there, you may not get divorced in Cape Town if the marriage broke down. This is so even though your marriage took place in Cape Town and you own property there. If, however, the husband lives in England, and the wife in Cape Town and she is resident there, then the divorce is possible in Cape Town. Now let us move on to other family law related matters. We will tackle the issue of child contact next.

I live in the United States of America, and I am not allowed to have contact with my child living in Cape Town, South Africa

It often happens that parents would have a relationship and bring a child into this world. The relationship deteriorates, and one parent then moves and relocates to another country. In our experience, this is usually work related. Everything would seem to go well until the relocating parent has problems exercising contact with his or her child in South Africa. The challenge for the parent that relocated is the distance. He or she is not able to pop into the child’s home should they not answer the phone or visit the children at school should he or she not be able to get hold of them. Luckily, in this case, because the children are living in a specific province, for example, the Western Cape, the parent who relocated can have his or her attorney approach the Court locally to enforce his or her rights. So, for example, let’s say in this case, the father relocated, he can enlist the services of an attorney in Cape Town to make an Urgent Application to the Western Cape High Court for an Order for immediate telephonic, or video contact. An Application in the Children’s Court would be problematic as he would have to be present at the Court. This, of course, would not be an issue if he is willing to fly down for each of the Court hearings. The Court would then hear the matter and decide what is best for the children involved. If it would be best for them to have telephonic and/or video contact with the father on a regular basis; the court would then make the appropriate order. The party can also consider incorporating a clause which would entail the minor children traveling to him overseas.

How to claim child maintenance for my children if the other parent lives in New York

International child maintenance is always a complicated issue. This is so as the parent who is supposed to pay maintenance is out of the country. For this very reason, a parent living in South Africa will have to make use of international law.

The parent will approach the maintenance court in South Africa who in turn will approach the court in the country where the parent who is supposed to pay maintenance lives. We will not go into detail in this article on how exactly the process works. However, it basically entails a court making an order in Cape Town and then later having it registered in the foreign country. The applicable legislation is the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963. The reverse also applies. Let’s say a parent lives in California and requires maintenance from a parent in South Africa. Then the same process would be applied. The parent would make an application for a maintenance order in California, and then have it registered in Cape Town. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 would also apply to South Africa. If this is applicable to you, we advise that you approach your local maintenance court as soon as possible.

Posted on 11 February 2025 by Telelaw

Appeals and Reviews – How does it work?

Appeals in court cases typically involve requesting a higher court to review a decision made by a lower court. For example, approaching the High Court to review the decision in the Magistrates Court matter. The process usually begins with filing a notice of appeal, outlining the grounds for the appeal and providing the necessary documents to support the case.

The appellate court will then review the lower court’s decision and determine whether any errors were made. If successful, the appellate court may either overturn the decision, order a new trial, or modify the original ruling. It’s important to seek legal assistance to navigate the complexities of the appeals process effectively. If you need legal assistance with appeals or reviews, consider reaching out to a qualified attorney or advocate for guidance.

Getting Legal Assistance with Appeals

If you require legal assistance or representation with your appeal matter, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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Basic Divorce Guide for all courts in South Africa

Supplied by Adv. Muhammad Abduroaf (LL.B LL.M) (Advocate of the High Court of South Africa)

Legal Advice regarding divorces

If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances: – There will be a dispute over care and visitation rights over the child/children; – One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property; -The joint estate is huge or complicated; or -The other party will be making use of legal representation.

General divorce procedures

If, however, you would like to know the general procedures on how to go about in obtaining a divorce decree; they are listed summarily below. Many rules regulate divorce processes and the summary below does exclude some of them. These include pretrial conferences, judicial case management, exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, for example, interim arrangements pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to attend to the divorce yourself.

Summons and Particulars of Claim in a Divorce Matter

A summons needs to be drafted which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing the divorce from, details of the parties, e.g. names, occupation, and address etc. Every High Court in the area where you live has the authority to attend to a divorce. You should then draft particulars of claim outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. The particulars of claim you attach to the summons. Once you have your summons and particulars of claim in order, you have to have the summons issued at court. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court.

Issuing and Service of a Divorce Summons

Once you are at the divorce court, go to the clerk/registrar of the court and have your documents issued. The clerk/registrar will sign the summons and provide a case number and insert it on the summons. You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) to the sheriff which serves documents where your spouse works of lives. You can ask the clerk/registrar of the court for those details. The extra—copy of the summons and particulars of claim you should keep for your file and records.

Notice of intention to defend in a divorce matter

Once the sheriff served the latter court documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons. If your spouse decided not to defend the divorce action, then after a period of two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to do what follows.

Plea to particulars of claim in a divorce matter

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or her attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agree to (or disagree to) which would give everyone a direction of what to prove in court.

Counter Claim in a divorce matter

Your spouse might want to file a counterclaim. In the same manner, as you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can do this in a counterclaim. A counterclaim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counterclaim in the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date for your Divorce

Once you received the plea, with or without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. Various processes may take place up until obtaining a trial date. These include pre-trial conferences and judicial case management proceedings etc. I will not deal with those items herein.

Discovery in Divorce matters

While you are waiting for a trial date, and long before that date, you may ask or may be asked to provide under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, title deeds etc., and which you or your spouse might want to make use of at trial. Once you received this schedule you may inspect and request copies of the documents.

Divorce day / Trial day

If your spouse does not defend the divorce within the allowed time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If however, your divorce is defended, a trial should ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the verdict. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced. Kind regards, Advocate Muhammad Abduroaf (Cape Town | Western Cape) LL.B & LL.M (Master of Laws) Constitutional Litigation Advocate of the High Court of South Africa Supplied by: Our Lawyer (Pty) Ltd Office: 0211110090 View the following related pages: Free DIY Online Divorce Guide and Form A divorce guide in PDF format A Sample Summons in Word format A Particulars of Claim in Word Format A notice of Set Down in Word Format

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option). You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today. 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. Should you require any other legal services and advice, not related to family law, visit Private Legal. Or click here for the details of Cape Town Advocate, Muhammad Abduroaf.