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Frequently Asked Questions on Child Custody – Cape Town

[caption id="attachment_7080" align="alignleft" width="188"]Advocate Muhammad Abduroaf High Court South Africa Advocate Muhammad Abduroaf – Advocate of the High Court South Africa[/caption] We hold a wealth of knowledge on family legal matters, in relation to South African law. This includes issues and questions surrounding child custody, divorce and child maintenance. Feel free to browse through the question and answers below. Should you not find the answer to a child custody question you are looking for, feel free to post your divorce question here. For more questions on child custody, visit this page.

Can you change the baby’s last name without the father’s consent?

No, you require his consent. If he does not want to give consent, then you may approach a court of law. This answer is based on the presumption that the father has parental responsibilities and rights over the child.

Do I have parental rights if I am not on the birth certificate?

Yes, it is possible that you have.

How do you change your last name on your birth certificate?

You need to apply to the Department of Home Affairs.

How do I apply for child maintenance in South Africa?

You should approach the maintenance court.

Can you change your child’s surname?

Yes, you can. Both parents should consent.

How do I change my child’s surname in South Africa?

You need to apply to the Department of Home Affairs.

How much is the basic rate of child maintenance?

There is no basic rate. It depends on the income and expenses of both parents and the needs of the child.

What are your rights as a father?

To form part of the child’s life.

Can you put your baby up for adoption without the father’s consent?

No, you cannot.

Can a mother keep the child away from the father?

She may only with very good reason.

Can a father take a child away from its mother?

He may only do so for a very good reason and in the child’s best interests.

Can a mother give up her parental rights?

Yes, she can.

What age do you stop paying child maintenance?

18. This is when the child is an adult.

What makes a child legitimate?

If both parents were married when the child was born or after. However, the term legitimate and illegitimate is frowned upon.

How do I get sole legal custody of my child?

You need to apply to the court.

Can you get child support if the father’s name is not on the birth certificate?

Yes, you can.

Can a parent take a child away from the other parent?

Only if it is truly in the child’s best interests.

Can you get child support if you have joint custody?

Yes, you can.

Can a parent take a child out of South Africa without permission of the other parent?

No, a parent cannot.

Can a mother take the child from the father?

No, she may not. If she does, she would have to have a valid reason.

What is considered parental kidnapping?

If a parent takes the child from the primary caregiver without his or her permission.

Can a police officer enforce a child custody order?

They may if ordered to.

What are your rights as a father?

To form part of a child’s life.

Who has custody of a child when the parents are not married?

Both parent if they form part of the child’s life. This is on condition that they both hold parental responsibilities and rights. In short, if they meaningfully partook in the child’s life, they hold parental responsibilities and rights.

Can you change the baby’s last name without the father’s consent?

No, you require both parent’s consent. This is especially so if both parents are holders of parental responsibilities and rights over the child.

Do I have parental rights if I am not on the birth certificate?

Yes, you do. If you meaningfully partook in the child’s life you have those rights. Here we refer to paying child support or proving support. We are also referring to you spending time with the child.

How do you change your last name on your birth certificate?

You apply to Home Affairs. Both parents have to give consent if they are co-holders of parental responsibilities and rights. If they do not give consent, then a court application has to be lodged.

How do I apply for child maintenance in South Africa?

You approach the maintenance court. There is a maintenance court in every magisterial jurisdiction in South Africa. You should approach on where you and the child resides, or where you work.

What is visitation rights?

The right to see your child or have contact with him or her. Visitation rights are usually every second weekend and during school holidays.

What rights does a father have to a child born out of wedlock?

To form part of the child’s life. In other words, the same rights as a father of a child born in wedlock. This is of course on condition that he meaningfully formed part of the child’s life since birth.

How can a father get custody of his child?

He should apply to the court. The court would look into what is in the child’s best interests.

What percentage of mothers get custody?

Mother’s are usually the primary caregivers of young children.

How do you get custody of a child without a lawyer?

You can approach the court yourself.

What is an unfit mother?

A mother who does not act in the child’s best interests.

Can a mother keep the child away from the father?

No, she may not. If the mother does that, the father can enforce his rights by approaching a competent court.

How do you apply for full custody of a child?

You approach the court. You may approach the Children’s Court or the High Court.

What percentage of fathers get custody?

A large amount. Each case has its own merits.

What are your rights as a father?

To form part of a child’s life. He also has responsibilities to care and guide the child.

Can you change your child’s surname?

Yes, you can. However, you require the consent of both parent’s holding parental responsibilities and rights.

How does a judge determine custody of a child?

The judge looks at what is in the best interests of the child. There is no pre-determined preference for the father or mother.

How can you get custody of your child?

You should apply to the court. The court would listen to both parents and decide what is best for the child.

What is full custody of a child?

Full custody means that you fully care for the child.

How much is the basic rate of child maintenance?

There is no basic rate. It depends on the specific circumstances of each case. You look at what the parent’s earn and the needs of the children.

Can a mother take her child away from the father?

She may only do that if it is in the child’s best interests. However, she may not go against a court order. If there is a court order in place, she would have to apply to have it varied.

Can a parent take a child away from the other parent?

No, a parent may not do so. If there is a court order in place, such order must first be changed.

How do I change my child’s surname in South Africa?

You need to apply at the Department of Home Affairs. Both parents should give consent. If consent is unreasonably withheld, a court application must be lodged.

How do you file for full custody of your child in Cape Town, South Africa?

You may approach the High Court of the Children’s Court. Each court has a different procedure.

What is joint custody with primary residence?

Joint custody means both parents have equal say in the child’s life and care for the child in that manner. Primary residence is where the child primarily resides. If the child lives with the father during the week, and only sees the mother on weekends, then his home is the primary residence.

What does it mean to have full custody?

The means that the child’ is cared for by only one parent who has full custody.

What is the difference between full and sole custody?

It means the same thing. However, full custody may also mean join custody. It all depends on the context.

Can you get custody of a child that’s not yours?

Yes, you can. You would need to apply to the court for such rights. You may apply to the High Court or the Children’s Court.

Who has custody of a child when the parents are not married?

By default the mother. However, the father acquires such rights if he forms part of the child’s life.

What rights does a mother have to her child?

A mother has full parental responsibilities and rights over her child.

Can you get sole custody and child support?

Yes, you can. They two are separate matters.

What does it mean to be the primary custodial parent?

It means the child is primarily cared for by that parent.

What is partial child custody?

It means that you do not care for the child all the time.

What is the meaning of joint custody?

Joint custody is where both parents care for the child.

What is the difference between legal and physical custody?

Legal would mean based on a court order or the law. Physical would mean what actually takes place.      
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DIY Divorce in Cape Town, Western Cape

Complete the free online divorce form below to assist you with your unopposed divorce. 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

COMBINED SUMMONS

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) Case no.: JOHN WILLIAMS (PLAINTIFF) (Identity Number: 0000000000000) And JANE WILLIAMS (DEFENDANT) (Identity Number: 1111111111111)   __________________________________ TO THE SHERIFF/HIS DEPUTY: INFORM JANE WILLIAMS an adult male/female, residing at 1 Apple Street, Apple Town, Western Cape Province (hereinafter referred to as the Defendant); that JOHN WILLIAMS an adult male/female, residing at 4 Green Street, Greenland, WESTERN CAPE, (hereinafter referred to as the Plaintiff), hereby institutes action against him/her in which action the Plaintiff claims the relief on the grounds set out in the particulars of claim annexed hereto; INFORM the Defendant further that if he / she disputes the claim and wishes to defend the action he/she shall:- (a) within 10 (TEN) days of the service upon him/her of this summons file with the Registrar of this Court at Keerom Street, Cape Town a notice of his/her intention to defend and serve a copy thereof on the Plaintiff’s Attorneys, which notice shall give an address referred to in rule 19(3) for the service upon the Defendant of all notices and pleadings in the action; (b) thereafter and within 20 (TWENTY) Court days after filing and serving the notice of intention to defend as aforesaid, file with the Registrar and serve upon the Plaintiff’s Attorneys a plea or exception with or without a claim in reconvention; INFORM the Defendant further that if he/she fails to file and serve notice as aforesaid judgment as claimed may be given against him/her without further notice to him/her or if, having filed and served such notice, he/she fails to plead, except, or to counterclaim, judgment may be given against him/her; INFORM the Defendant also that if he/she does not intend to defend the action, he/she may give written notice to that effect to the Plaintiff’s Attorneys and the Registrar and the action may then, at the written request of the Plaintiff’s Attorneys, be forthwith set down by the Registrar for hearing; And immediately thereafter serve on the Defendant a copy of this Summons and return the same to the Registrar with whatever you have done thereupon.     DATED AT CAPE TOWN THIS DAY OF 2017.   ……………………………………………………………… REGISTRAR OF THE HIGH COURT   ______________________   ______________________ Per: JOHN WILLIAMS (Plaintiff in Person) 4 Green Street, Greenland, WESTERN CAPE ______________________o0o____________________

Fee Online Divorce Form and Guide

If you want to attend to your own uncontested divorce, we can to help you at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents. [ninja_form id=35]  

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
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Relocation with my minor child to Spain, Barcelona (Consent and Refusal) – Advocate Muhammad Abduroaf

The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.

Relocation of your minor child to Barcelona, Spain

If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages seven or eight) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Port Nolloth or Newcastle, South Africa, and you want to relocate to Barcelona, Spain, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.

What about Passport Consent to travel or relocate to Barcelona, Spain?

The same applies when it comes to your minor child applying for a South African passport to relocate to Spain, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.

What are the steps to follow when I want to relocate to Barcelona, Spain with my minor child? There is another parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Barcelona, Spain.

What can I do if the other parent does not want to consent to the minor child’s relocation to Barcelona, Spain?

If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Barcelona, Spain, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Barcelona, Spain. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Barcelona, Spain, the Court would make it possible despite the issue of consent or refusal.

What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Barcelona, Spain?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Barcelona, Spain – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Barcelona, Spain, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.

Getting legal assistance or help with your relocation application to Barcelona, Spain

If you require legal assistance or representation with relocating to Barcelona, Spain due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on by Telelaw