family trust, legal, trust registration, register trust, Cape Town

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[caption id="attachment_10839" align="alignnone" width="667"]Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Switzerland – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Switzerland with my minor child. The other parent does not want my child to relocate to Switzerland. What can I do?

Switzerland is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Switzerland, if a minor child will be joining that parent and also relocating to Switzerland, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Switzerland. Before we do so, let us list the various cities and towns in Switzerland to which you may want to relocate: Zürich, Geneva, Basel, Lausanne, Bern, Winterthur, Lucerne, Sankt Gallen, Lugano, Biel/Bienne, Thun, Bellinzona, Köniz, La Chaux-de-Fonds, Fribourg, Schaffhausen, Vernier, Chur, Sion, Uster, Neuchâtel, Landecy, Zug, Yverdon-les-Bains, Emmen, Dübendorf, Kriens, Rapperswil-Jona, Dietikon, Montreux, Wetzikon, Baar, Meyrin, Wil, Bulle, Horgen, Carouge, Frauenfeld, Kreuzlingen, Wädenswil, Riehen, Aarau, Allschwil, Renens, Wettingen, Nyon, Bülach, Vevey, Opfikon, Kloten, Reinach, Baden, Onex, Adliswil, Schlieren, Volketswil, Pully, Regensdorf, Gossau, Muttenz, Thalwil, Monthey, Ostermundigen, Littau, Grenchen, Olten, Sierre, Solothurn, Pratteln, Burgdorf, Freienbach, Wohlen, Locarno, Wallisellen, Morges, Steffisburg, Herisau, Langenthal, Binningen, Einsiedeln, Lyss, Mendrisio, Arbon, Liestal, Stäfa, Küsnacht, Horw, Schwyz, Thônex, Meilen, Oftringen, Amriswil, Versoix, Richterswil, Rheinfelden, Brig-Glis, Gland, Küssnacht, Muri, Zollikon, Ecublens, Spiez, Delémont, Buchs, Prilly, Chêne-Bougeries, Le Grand-Saconnex, Rüti, Münchenstein, Villars-sur-Glâne, Affoltern am Albis, Arth, La Tour-de-Peilz, Pfäffikon, Spreitenbach, Altstätten, Zofingen, Veyrier, Bassersdorf, Weinfelden, Belp, Worb, Hinwil, Romanshorn, Oberwil, Brugg, Möhlin, Männedorf, Davos, Plan-les-Ouates, Waltikon, Lenzburg, Flawil, Neuhausen am Rheinfall, Le Locle, Suhr, Sarnen, Aesch, Birsfelden, Lutry, Bernex, Maur, Aigle, Naters, Steinhaus, Therwil, Payerne, Gossau, Sursee, Hochdorf, Urdorf, Wald, Estavayer-le-Lac, Wittenbach, Widnau, Epalinges, Rorschach, Embrach, Altdorf, Langnau, Goldach, Schübelbach, Arlesheim, Niederhasli, Rothrist, Aadorf, Ingenbohl, Oberriet, Zuchwil, Unterägeri, Landquart, Neuenhof, Hünenberg, Fully, Lachen, Wattwil, Bussy, Conthey, Mels, Egg, Hombrechtikon, Fällanden, Biberist, Obersiggenthal, Le Mont-sur-Lausanne, Reinach, Kilchberg, Stans, Oberentfelden, Murten, Bagnes, Aarburg, Domat/Ems, Chiasso, Buchs, Düdingen, Crissier, Rümlang, Visp, Muri, Au, Willisau, Bex, Sirnach, Bremgarten, Gränichen, Chavannes-près-Renens, Savièse, Dietlikon, Windisch, Rothenburg, Dürnten, Langnau am Albis, Ollon, Hirslen, Moutier, Villmergen, Minusio, Seuzach, Rorschacherberg, Wollerau, Untersiggenthal, Meggen, Herzogenbuchsee, Bubikon, Reiden, Altendorf, Grabs, Orbe, Châtel-Saint-Denis, Oberglatt, Frutigen, Ruswil, Schwarzenburg, Heimberg, Saanen, Nidau, Dornach, Losone, Bottmingen, Sissach, Porrentruy, Beromünster, Thal, Oberengstringen, Trimbach, Wiesendangen, Derendingen, Würenlos, Diepoldsau, Frenkendorf, Uznach, Oberuzwil, Birmensdorf, Fehraltorf, Vétroz, Kerns, Menziken, Buchs, Herrliberg, Oensingen, Teufen, Bolligen, Rolle, Massagno, Gelterkinden, Küttigen, Blonay, Boudry, Uetikon am See, Moudon, Balsthal, Buchrain, Biasca, Obererli, Alpnach, Bischofszell, Glarus, Kirchberg, Dielsdorf, Zell, Saxon, Uetendorf, Sankt Margrethen, Rüschlikon, Peseux, Hergiswil, Villeneuve, Unterseen, Jegenstorf, Echallens, Neftenbach, Saint-Prex, Walenstadt, Appenzell, Zermatt, Mellingen, Lindau, Interlaken, Sennwald, Nürensdorf, Kaiseraugst, Cologny, Erlenbach, Frick, Laufen, Colombier, Fislisbach, Bonstetten, Ascona, Dagmersellen, Rupperswil, Thayngen, Courtepin, Schattdorf, Gebenstorf, Adligenswil, Münchwilen, Greifensee, Obfelden, Buochs, Vechigen, Seon, Préverenges, Konolfingen Dorf, Romont, Feusisberg, Lengnau, Bellach, Lausen, Gerlafingen, Hitzkirch, Glattfelden, Saint Légier-La Chiésaz, Eglisau, Gommiswald, Ettingen, Sachseln, Hägendorf, Zumikon, Fraubrunnen, Sevelen, Schwerzenbach, Oberrieden, Wangen bei Olten, Wangen, Dulliken, Sumiswald, Root, Ebnat-Kappel, Bäretswil, Chavornay, Saint Moritz, Bauma, Geroldswil, Niederglatt, Schönenwerd, Bettlach, Elgg, Strengelbach, Mettmenstetten, Sainte-Croix, Flums, Kaltbrunn, Huttwil, Sigriswil, Ehrendingen, Ennetbürgen, Balgach, Zuzwil, Niederlenz, Berikon, Weiningen, Oetwil am See, Turbenthal, Cortaillod, Wängi, Niederbipp, Egnach, Oberkirch, Würenlingen, Gordola, Troistorrents, Saint-Sulpice, Triengen, Le Landeron, Beringen, Tägerwilen, Aarberg, Confignon, Meiringen, Stabio, Scuol, Le Chenit, Stansstad, Morbio Inferiore, Saint-Maurice, Tramelan, Menzingen, Monte Ceneri, Bronschhofen, Aarwangen, Winkel, Füllinsdorf, Zufikon, Kölliken, Rafz, Oberbüren, Agno, Klosters Platz, Schötz, Schöftland, Bubendorf, Brügg, Rebstein, Speicher, Eschlikon, Weggis, Gachnang, Caslano, Russikon, Birr, Cheseaux-sur-Lausanne, Wolhusen, Utzenstorf, Kehrsatz, Wichtrach, Avenches, Sins, Bad Zurzach, Uitikon, Schüpfheim, Lucens, Lens, Vouvry, Satigny, Engelberg, Sempach, Gross Höchstetten, Heiden, Unterentfelden, Lützelflüh, Paradiso, Degersheim, Niederrohrdorf, Matten, Dällikon, Roggwil, Oberrohrdorf, Ayent, Döttingen, Hilterfingen, Prangins, Leysin, Hunzenschwil, Diessenhofen, Seengen, Bürglen, Berneck, Brittnau, Böttstein, Lostorf, Leuk, Magden, Chamoson, Dottikon, Muhen, Sulgen, Niedergösgen, Nottwil, Breitenbach, Pfungen, Safenwil, Bürglen, Vallorbe, Schänis, Unterengstringen, Grindelwald, Bevaix, Langendorf, Founex, Jonschwil, Steckborn, Reichenburg, Erlen, La Neuveville, Hedingen, Schüpfen, Belmont-sur-Lausanne, Mönchaltorf, Schmerikon, Widen, Port, Stallikon, Egerkingen, Beckenried, Walchwil, Elsau, Giswil, Rüti, Hausen am Albis, Feuerthalen, Hausen, Tavannes, Laufenburg, Reichenbach im Kandertal, Hittnau, Stein, Plaffeien, Eschenbach, Mörschwil, Büren an der Aare, Ins, Erlinsbach, Merenschwand, Chalais, Attalens, Poschiavo, Waldkirch, Ennetbaden, Klingnau, Luterbach, Gams, Steinmaur, Château-d’Oex, Ermatingen, Selzach, Münsterlingen, Grimisuat, Zizers, Yvonand, Rheineck, Steinen, Berg, Bösingen, Vacallo, Thunstetten, Corsier-sur-Vevey, Stein am Rhein, Adelboden, Rickenbach, Grüningen, Grandson, Savigny, Staufen, Bonaduz, Entlebuch, Courroux, Romanel-sur-Lausanne, Tuggen, Trimmis, Weisslingen, Bellevue, Buttisholz, Penthalaz, Belfaux, Madiswil, Beinwil am See, Balerna, Rüegsbach, Bätterkinden, Aubonne, Grosswangen, Kappel, Thusis, Ardon, Saint-Blaise, Leytron, Subingen, Stein, Ursy, Arosa, Orsières, Kirchlindach, Hofstetten, Le Mouret, Coppet, Niederhelfenschwil, Hettlingen, Neerach, Laupen, Oberdorf, Seedorf, Stettlen, Lupfig, Brienz, Torricella, Unterkulm, Gais, Roggwil, Echichens, Benken, Niederweningen, Zweisimmen, Grossaffoltern, Turgi, Schafisheim, Courrendlin, Birmenstorf, Müllheim, Mühleberg, Murgenthal, Meisterschwanden, Chardonne, Geuensee, Coldrerio, Schenkon, Quarten, Wattenwil, Oberburg, Waltenschwil, Cadenazzo, Samedan, Matzingen, Faido, Sarmenstorf, Etoy, Märstetten, Othmarsingen, Mosnang, Menznau, Puidoux, Commugny, Täuffelen, Däniken, Rorbas, Boswil, Flims, Otelfingen, Niederwil, Bergdietikon, Ennenda, Orpund, Fischingen, Ballwil, Gretzenbach, Genthod, Riaz, Rickenbach bei Wil, Rain, Horn, Ettiswil, Lengnau, Cugy, Lauterbrunnen, Vionnaz, Höri, Oberkulm, Corminboeuf, Muralto, Montanaire, Schiers, Pfaffnau, Evilard, Kaisten, Signau, Rickenbach, Wilderswil, Mont-sur-Rolle, Broc, Riva San Vitale, Lenzerheide, Nebikon, Bioggio, Hauterive, Felsberg, Saillon, Rapperswil, Lauperswil, Courtételle, Saignelégier, La Sarraz, Lonay, Maggia, Buchegg, Froideville, Saint-Cergue, Endingen, Neyruz, Lotzwil, Ringgenberg, Zunzgen, Inwil, Ottenbach, Riggisberg, Affeltrangen, Kemmen, Büron, Wimmis, Bönigen, Hölstein, Sant’ Antonino, Roveredo, Wilen, Untervaz, Toffen, Fischenthal, Troinex, Vandœuvres, Corcelles-près-Payerne, Hohenrain, Puplinge, Oetwil an der Limmat, Meikirch, Wigoltingen, Saint-Léonard, Eggiwil, Oberdorf, Thierachern, Hägglingen, Grône, Rothenthurm, Vuadens, Anières, Zwingen, Saint-Aubin-Sauges, Rüthi, Unteriberg, Rüderswil, Novazzano, Malans, Wiedlisbach, Freienstein, Ueberstorf, Lufingen, Krauchthal, Pfeffingen, Hildisrieden, Gersau, Courgenay, Vuisternens-devant-Romont, Reconvilier, Urnäsch, Martigny-Combe, Wangen an der Aare, Riedholz, Zeiningen, Knonau, Bardonnex, Büsserach, Oberbuchsiten, Eiken, Neunkirch, Worben, Corseaux, Udligenswil, Wolfwil, Stadel bei Niederglatt, Henggart, Neuheim, Schinznach Dorf, Canobbio, Diemtigen, Wauwil, Sankt Niklaus, Chexbres, Gimel, Siviriez, Neuendorf, Knutwil, Dintikon, Bottighofen, Cazis, Hallau, Ormalingen, Savosa, Altnau, Deitingen, Obergösgen, Stetten, Andelfingen, Gruyères, Ennetmoos, Gontenschwil, Leuggern, Pontresina, Castel San Pietro, Aegerten, Itingen, Auw, Seftigen, Fahrwangen, Meinier, Villigen, Werthenstein, Lungern, Mägenwil, Corsier, Jonen, Marbach, Wolfenschiessen, Koppigen, Mies, Forel, Kleinandelfingen, Sankt Antoni, Grüsch, Killwangen, Ersigen, Wynigen, Oberlunkhofen, Zell, Comano, Alterswil, Gorgier, Vollèges, Brütten, Pfyn, Andwil, Recherswil, Remetschwil, Silenen, Aeugst am Albis, Flüeln, Walzenhausen, Wila, Barbengo, Val-d’Illiez, Flühli, Vordemwald, Begnins, Marthalen, Churwalden, Servion, Raron, Sattel, Genolier, Tolochenaz, Dachsen, Hochfelden, Avry-sur-Matran, Grolley, Winznau, Kallnach, Oberegg, Vezia, Marsens, Ponte Capriasca, Malleray, Cressier, Vernayaz, Nunningen, Lichtensteig, Dänikon, Waldstatt, Dardagny, Röschenz, Seedorf, Uttwil, Laax, Charrat, Alle, Le Noirmont, Grellingen, Dallenwil, Kirchdorf, Schönenberg, Arni, Wolfhalden, Veyras, Pont-en-Ogoz, Laupersdorf, Biglen, Vex, Acquarossa, Kestenholz, Melide, Saint-Aubin, Bühler, Oberweningen, Niederdorf, Rüeggisberg, Massongex, Amden, Fulenbach, Sorengo, Brissago, Römerswil, Oberbipp, Walkringen, Avully, Cugy, Weiach, Penthaz, Künten, Rehetobel, Erlenbach im Simmental, Eschenz, Hasle, Lamone, Wilchingen, Trogen, Lengwil, Hüttwilen, Attinghausen, Weesen, Oberdorf, Starrkirch, La Roche, Schwarzenberg, Corgémont, Wagenhausen, Bellmund, Chancy, Fontenais, Evolène, Schleitheim, Teufenthal, Niederönz, Langwiesen, Rüschegg, Koblenz, Diegten, Gunzgen, Brislach, Roche, Härkingen, Arisdorf, Giffers, Villnachern, Cudrefin, Wynau, Eich, Magliaso, Chippis, Sisseln, Denges, Eysins, Saas-Fee, Zäziwil, Arch, Güttingen, Hirschthal, Bière, Ziefen, Berg, Reigoldswil, Luzein, Auenstein, Heimiswil, Porza, Altishofen, Lütisburg, Tannay, Schwellbrunn, Biberstein, Ossingen, Wohlenschwil, Pfäfers, Cornaux, Bellikon, Seeberg, Auvernier, Bedano, Dinhard, Salgesch, Herznach, Homburg, Duggingen, Perroy, Lommiswil, Jongny, Oberrüti, Cadempino, Wikon, Airolo, Zernez, Les Breuleux, Rue, Buchholterberg, Eichberg, Matran, Melchnau, Niederbüren, Lumino, Tägerig, Cottens, Guggisberg, Bossonnens, Paudex, Attiswil, Aristau, Rhäzüns, Rohrbach, Messen, L’Abbaye, Les Montets, Löhningen, Treyvaux, Ramsen, Apples, Mumpf, Veltheim, Wahlen, Schneisingen, Rüttenen, Tübach, Meierskappel, Mauensee, Origlio. (https://simplemaps.com/data/ch-cities)  

Why do I require the other parent’s Consent to relocate to Switzerland?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Switzerland. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (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). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (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. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Switzerland. Even if the minor child only wants to go for a short holiday to Switzerland, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Switzerland?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Switzerland. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Switzerland.

Mother’s Consent for relocation of the minor child to Switzerland

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Switzerland, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Switzerland

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers 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. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Switzerland. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Switzerland.

Consent of unmarried fathers for the relocation of their minor children to Switzerland.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (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. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Switzerland?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Switzerland, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (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). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Switzerland, then the Court will make an Order similar to that which is shown below. Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf [caption id="attachment_10839" align="alignnone" width="676"]Relocation consent Court Order for minor child to Switzerland - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Switzerland – Advocate Muhammad Abduroaf[/caption]  

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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.                        

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