History of the law of exercising contact and care rights of parents during the lockdown in South Africa – The rollercoaster ride for parents and lawyers

The national lockdown not only affected our movement by keeping us in our homes. It also affected our relationships with people important and dearest in our lives. Here we refer to family, friends and colleagues to mention a few. Before the lockdown commenced in South Africa, parents were exercising contact with their children as they always have in the past. Friends and family gatherings were not seen as a privilege but as part of daily life, and an inherent right. However, when the lockdown commenced, things drastically changed. And without warning.

The following are a few of the actual consequences of the lockdown when it comes to family relations:

  • Spouses or partners who would only see each other for part of the day, now see each other virtually the entire day;
  • Schools are closed, and parents can only care for children at their homes;
  • Children were not allowed to move between parents as they were used to at the start of the lockdown;
  • Visits to close friends and your relatives are prohibited. Therefore, adult children may not have seen their parents since the lockdown commenced.
  • Siblings, cousins and spouses living in different provinces would not have seen each other for weeks.

The commencement of the National Lockdown in South Africa

The date 27 March 2020, is of great significance to all South Africans. It is the day were all South African’s were placed under lockdown. This was something no South African was prepared for. The call was imminent. The life we lived before that day, would not be lived for quite some time to come. Now let us look at the regulations dealing with the movement of children during the lockdown.

First Regulations regarding the movement of children during the lockdown

Regulations were then issued concerning the movement of children. In terms of the Regulations at the time, minor children were to remain in the care of the parent who had the child at the time. Have a look at an article written by Adv. Muhammad Abduroaf on this issue: “The child must remain in the custody of the parent with whom the child was with when the lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020] This caused huge challenges for many parents. It meant that a parent who never cared for a child for longer than a day would now have to care for the child for the entire lockdown period. This also caused a huge stir. Not only for parents but also for the legal profession, especially for a lawyer who specialises in family law.

Second set of Regulations regarding the movement of children during the lockdown

The Regulations then changed, allowing movement as long as you have a registered parenting plan, or a parental rights and responsibilities agreement, both registered with the Office of the Family Advocate, or an Order of Court. This was also problematic as parents who did not have the latter documents could not have contact with their minor children. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: New lockdown regulations regarding the movement of children – Certain Parents may move children during the National Lockdown period No equality and dignity for parents without Court Order and Registered Plans and Agreements  

Third set of Regulations regarding the movement of children during the lockdown

Then the regulations were again changed. It further allowed for the movement of children of parents who do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court. They may move from one home to another to collect and return their minor child with one requirement. They must have in their possession the birth certificate of the child, or a certified copy thereof. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: Latest Regulations: No Court order, registered agreement or parenting plan is required for the movement of children during the lockdown – 16 April 2020.

Fourth set of Regulations regarding the movement of children during the lockdown

Then came the recent regulations which have been issued after the extended lockdown in May 2020. In essence, parents may move with their child if they have a registered parenting plan, or a parental rights and responsibilities agreement or an Order of the Court. Another requirement was that the home the child is to move to is free from COVID-19. You will note that the birth certificate requirement for the parents who do not have the latter documents no longer applies. If parents do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court, they may collect and drop-off the child only after they obtained a Magistrate’s Permit. A parent who has rights of contact needs to approach the magistrate in the area where he or she lives to obtain a permit to move the child. Have a look at these two posts on the topic. The Magistrate’s Permit – 3 steps to obtain your permit to collect your child during lockdown The Magistrate’s Permit – New regulations on Movement of children during the Lockdown It should be noted that the permit does not give you rights of care and contact. It only allows you to move the child. So, if the police stop you, you can show them the permit. If you and the other parent have disputes regarding contact, you cannot use the permit as a way of enforcing contact. That must be resolved at a court of law. Therefore, if you visit the child to collect him with a permit, and the other parent refuses you contact, you still need to approach the relevant court.

Fifth set of Regulations regarding the movement of children during the lockdown

On Thursday 28 May 2020, the Minister issued regulations which took effect on 1 June 2020. This was when level 3 of the lockdown was implemented in South Africa. The regulations regarding the movement of children remained largely the same, except for the inter-provincial movement of children and student in relation to attending their places of learning. In short, the head of the school, or institution of higher learning must issue a certificate for the purposes of travelling between provinces. The regulations can be downloaded here.

Future regulations regarding the movement of children during the lockdown

As can be seen from the aforesaid, the government has thus far issued 5 (five) sets of regulations regarding the movement of children between parents. Depending on how the fight of the COVID-19 pandemic unfolds, it may call for changes to the regulations on the movement of children. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws
Posted on by Telelaw

History of the law of exercising contact and care rights of parents during the lockdown in South Africa – The rollercoaster ride for parents and lawyers

The national lockdown not only affected our movement by keeping us in our homes. It also affected our relationships with people important and dearest in our lives. Here we refer to family, friends and colleagues to mention a few. Before the lockdown commenced in South Africa, parents were exercising contact with their children as they always have in the past. Friends and family gatherings were not seen as a privilege but as part of daily life, and an inherent right. However, when the lockdown commenced, things drastically changed. And without warning.

The following are a few of the actual consequences of the lockdown when it comes to family relations:

  • Spouses or partners who would only see each other for part of the day, now see each other virtually the entire day;
  • Schools are closed, and parents can only care for children at their homes;
  • Children were not allowed to move between parents as they were used to at the start of the lockdown;
  • Visits to close friends and your relatives are prohibited. Therefore, adult children may not have seen their parents since the lockdown commenced.
  • Siblings, cousins and spouses living in different provinces would not have seen each other for weeks.

The commencement of the National Lockdown in South Africa

The date 27 March 2020, is of great significance to all South Africans. It is the day were all South African’s were placed under lockdown. This was something no South African was prepared for. The call was imminent. The life we lived before that day, would not be lived for quite some time to come. Now let us look at the regulations dealing with the movement of children during the lockdown.

First Regulations regarding the movement of children during the lockdown

Regulations were then issued concerning the movement of children. In terms of the Regulations at the time, minor children were to remain in the care of the parent who had the child at the time. Have a look at an article written by Adv. Muhammad Abduroaf on this issue:

“The child must remain in the custody of the parent with whom the child was with when the lockdown period started” – Directive 6(m)(ii) in terms of the Regulations [30 March 2020]

This caused huge challenges for many parents. It meant that a parent who never cared for a child for longer than a day would now have to care for the child for the entire lockdown period. This also caused a huge stir. Not only for parents but also for the legal profession, especially for a lawyer who specialises in family law.

Second set of Regulations regarding the movement of children during the lockdown

The Regulations then changed, allowing movement as long as you have a registered parenting plan, or a parental rights and responsibilities agreement, both registered with the Office of the Family Advocate, or an Order of Court. This was also problematic as parents who did not have the latter documents could not have contact with their minor children. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled:

New lockdown regulations regarding the movement of children – Certain Parents may move children during the National Lockdown period

No equality and dignity for parents without Court Order and Registered Plans and Agreements

 

Third set of Regulations regarding the movement of children during the lockdown

Then the regulations were again changed. It further allowed for the movement of children of parents who do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court. They may move from one home to another to collect and return their minor child with one requirement. They must have in their possession the birth certificate of the child, or a certified copy thereof. Have a look at an article written by Adv. Muhammad Abduroaf on this issue entitled: Latest Regulations: No Court order, registered agreement or parenting plan is required for the movement of children during the lockdown – 16 April 2020.

Fourth set of Regulations regarding the movement of children during the lockdown

Then came the recent regulations which have been issued after the extended lockdown in May 2020. In essence, parents may move with their child if they have a registered parenting plan, or a parental rights and responsibilities agreement or an Order of the Court. Another requirement was that the home the child is to move to is free from COVID-19. You will note that the birth certificate requirement for the parents who do not have the latter documents no longer applies.

If parents do not have a registered parenting plan, or a registered parental rights and responsibilities agreement or an Order of the Court, they may collect and drop-off the child only after they obtained a Magistrate’s Permit. A parent who has rights of contact needs to approach the magistrate in the area where he or she lives to obtain a permit to move the child. Have a look at these two posts on the topic.

The Magistrate’s Permit – 3 steps to obtain your permit to collect your child during lockdown

The Magistrate’s Permit – New regulations on Movement of children during the Lockdown

It should be noted that the permit does not give you rights of care and contact. It only allows you to move the child. So, if the police stop you, you can show them the permit. If you and the other parent have disputes regarding contact, you cannot use the permit as a way of enforcing contact. That must be resolved at a court of law. Therefore, if you visit the child to collect him with a permit, and the other parent refuses you contact, you still need to approach the relevant court.

Fifth set of Regulations regarding the movement of children during the lockdown

On Thursday 28 May 2020, the Minister issued regulations which took effect on 1 June 2020. This was when level 3 of the lockdown was implemented in South Africa. The regulations regarding the movement of children remained largely the same, except for the inter-provincial movement of children and student in relation to attending their places of learning. In short, the head of the school, or institution of higher learning must issue a certificate for the purposes of travelling between provinces. The regulations can be downloaded here.

Future regulations regarding the movement of children during the lockdown

As can be seen from the aforesaid, the government has thus far issued 5 (five) sets of regulations regarding the movement of children between parents. Depending on how the fight of the COVID-19 pandemic unfolds, it may call for changes to the regulations on the movement of children.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

Related Post

How do I strategies my child maintenance case? I am struggling to grasp how to approach my maintenance matter. Please give me some advice?

As with any legal matter where you have a dispute, you need to have a strategy or a plan to be successful. Without a strategy or plan, you are just hoping for the best. However, hope does not steer a boat to shore. There are some, and in most cases, a lot of work, planning and thinking. Let’s face it, the other party or parent in your legal matter also has a plan or strategy. Suppose they put the necessary energy into executing it for the intended results, or at least more than what you are putting into it; their results will favour them much more. That is so, despite all the hope you put into it.

Understand the maintenance laws and how it works

But before we move on, with any plan or strategy, comes knowledge. It would do little good if you did not research how child maintenance works, the legal process, and what outcomes are possible. With all the information online, it is expected that you would watch some online videos on child maintenance and read some of the many articles on the topic. Knowledge is key, and that is what is going to get you through your case.

What are the basic principles in a child maintenance matter?

We would not say child maintenance matters are simple. Very few, if any, legal matters are simple. But anyone can learn. However, if you are guided by the principle that the maintenance amount payable is based on what the child costs, you are getting somewhere. That is your starting point and stay focused on that. Not what the parents earn or what they own. That is secondary. It does not mean that if a parent earns R 50 000 – 00 a month, that they should pay R 10 000 – 00 a month, despite the child costing R 1 000 – 00 a month. At best, the most the parent would pay is R 1 000 – 00. It would help if you worked from the ground up.

You need to focus on two words, “reasonable”, and “necessary.”

The child’s expenses must be reasonable and necessary for you to convince a Court to allow those expenses. In other words, force a parent to contribute towards it. In determining what is reasonable and necessary, one would look at what the child needs for daily living and whether that falls within the standard of living of the parents and the child. For example, if the parents are modest salary earners, living in humble homes, and were brought up in the same way, then that would be what the minor child would be entitled to when calculating child maintenance. If the parents never had ponies as pets, then a pony would not amount to a reasonable and necessary expense for the minor child. However, it is up to you to explain to the court why an expense is “reasonable” and “necessary”. If you can do so for a pony, then you did a good job.

Look at the means or money available in the maintenance equation

The principle one must move towards is that parents have to contribute towards the minor child based on their means. Remember, their contribution is firstly based on what the child costs and not what the earnings and wealth of the parents are. Then we need to look at what the parents can afford. Now affordability is not only based on your income, but also on your assets. If a parent does not have an income but owns expensive assets, then that has to be taken into account. Think of it this way – a parent can convert that asset into money by selling the asset.

Remember, parents have to live as well (They also have expenses)

It is not that simple just to take the gross or net salary of the parent and then work out the maintenance payable from there, based on the needs of the child. If that was the case, then maintenance matters would be resolved much quicker. Parents have expenses that need to be factored into the equation. Hold that in mind all the time because that principle applies to you. Therefore, in order for a parent to earn a salary to pay child support, he or she needs to eat at work, buy clothes for work, travel to work and so on. Circumstances need to be assessed on what they are and not what one hopes them to be. If the parents cannot afford for the child to be enrolled at a specific school, then that is what one must accept and be happy with a less expensive school for your child.

Analyse the situation from all angles

Once you have analysed the situation, take stock of the fact that all factors need to be looked at. You need to focus on what is reasonable. Reasonability applies to all aspects of the child maintenance equation. This includes the reasonable needs of the minor child, considering the income and means of the parents. When focusing on the child, determine whether or not his or her expenses are reasonable considering the standard of living and your position in life. Does the child need everything, or are there some items that you now require seeing that the child is older or circumstances have changed?

Are the parents spending reasonably?

Look at your situation and that of the other parent as well. Is it reasonable for him or her to spend R 2000 – 00 on fuel to go to work when he or she can take public transport? This is so even though this parent earns R 6000 – 00 a month. This must be considered in conjunction with what the needs of the child are. If the parent says he or she cannot afford to pay half the school fees, which is a reasonable amount, then one needs to question whether under the circumstances using up a third of your income for fuel is reasonable, where after you are unable to pay towards your child’s school fees.

Create arguments to support your point of view

Remember, you need to convince the maintenance court that what you are requesting as child support is reasonable. Reasonable based on the facts before the court or at hand, and not what one party wishes it to be. And those facts are also your income, expenses, as well as that of the other parent. Let us not forget the standard of living. This is important as we all want what is best for our children. However, not all families can afford to send their children to the most expensive schools. For many, it is not sustainable. On the other hand, parents should contribute toward their minor children, which is fair and reasonable. What is fair and reasonable is determined based on the information and facts at hand. Furthermore, what is fair and reasonable for one family will definitely not be fair and reasonable for another family. This is so despite both families having the same number of children and ages. All families and children are unique. In conclusion, if you understand the above general principles, you would find it easier to deal with and handle your child maintenance case. You will focus on what is necessary in order to be successful. Good luck with your maintenance matter.  

Posted on by Telelaw

How do I find an Attorney Firm in Cape Town for you?

When you get yourself into legal trouble or require some type of legal services, finding an attorney is something to strongly consider. An attorney is trained in the law and would be able to advise you on the best course of action to take. If your legal problem relates to something very serious, for instance, a divorce or a criminal charge, then having a good attorney on your side is strongly encouraged. Here are some tips for finding an attorney for you:
  1. Define Your Needs: Identify the specific legal services you require (e.g., family law, criminal defence, corporate law).
  2. Research Online: Use legal directories;
  3. Check Reviews and Ratings: Look for client reviews and ratings to gauge the firm’s reputation and client satisfaction.
  4. Ask for Recommendations: Reach out to friends, family, or colleagues who may have had similar legal needs for personal recommendations.
  5. Evaluate Experience: Consider the firm’s experience in your specific legal issue, including years in practice and case outcomes.
  6. Schedule Consultations: Many firms offer free or less expensive consultations. Use this opportunity to meet attorneys, discuss your case, and assess their communication style.
  7. Assess Costs: Inquire about fees and billing practices. Understand whether they charge hourly rates, flat fees, or contingency fees.
  8. Trust Your Instincts: Choose a firm that you feel comfortable with and confident in their ability to handle your case.
  9. Verify Credentials: Check the attorneys’ qualifications and any disciplinary history.
  10. Consider Location: Proximity can be important for ease of communication and meetings.
Taking the time to research and evaluate different firms will help you find the right fit for your legal needs.

Posted on by Telelaw

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Graaff-Reinet.

Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.

Claiming child maintenance for your child in Graaff-Reinet

Whether you claim child maintenance in Graaff-Reinet, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Graaff-Reinet.

The maintenance scenario – Graaff-Reinet South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

  1. The Child is seven years old and attends school in Graaff-Reinet
  2. The child is cared for by the mother who works in Graaff-Reinet
  3. The mother works and earns a Salary of R 10 000
  4. The father sees the child every second weekend. He also lives and works in Graaff-Reinet
  5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
  6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
  7. The mother claims R 4 000 – 00 maintenance as the father earns double her salary

What is the first step the mother must take in claiming child maintenance?

The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.

How does she start the legal process?

The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Graaff-Reinet, it would be the maintenance court in Graaff-Reinet. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.

What do you do while waiting for the maintenance court date?

While you wait to be informed of the court date by the Maintenance Court of Graaff-Reinet, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.

What happens at the first court appearance at the Graaff-Reinet Maintenance Court?

Once you have been notified of the maintenance court date by the Graaff-Reinet Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.

The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.

How does the Maintenance Court hearing or trial work in Graaff-Reinet?

Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.

At the end of the day, the Graaff-Reinet Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Graaff-Reinet Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.

The above child maintenance application principles should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Graaff-Reinet, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!