How do I obtain contact, custody or visitation to my child? I need some advice and assistance.

Issues of child custody, visitation or guardianship rights are usually difficult for parents to deal with. Parents have an inherent right and duty to form part of their child’s lives. Here we refer to parental rights and responsibilities. However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interests. More often than not, when parents are divorced, separated, or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children. These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights. With some advice, your situation may become easier.

What are Parental Responsibilities and rights to a child?

Know your rights: The terms used to refer to the rights and responsibilities of parents to their children are referred to as “parental responsibilities and rights”. Parental responsibilities and rights are defined in the Children’s Act. Section 18 of the Children’s Act of 38 2005 (the Children’s Act) states the following: 18. (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.

When do parents need to enter into a Parenting Plan?

Mediate the issue: Not going into too much detail, all parents of children should by default have certain parental responsibilities and rights to their children. It often happens that parents who are co-holders of parental responsibilities and rights are unable to agree on how their rights should be exercised. Should that happen, then according to section 33 and 34 of the Children’s Act, they should try to agree on a parenting plan. See an expert: Basically, they should see an expert like a social worker, or psychiatrist assist them in resolving the issues they have. As long as the person is suitably qualified, they may make use of their services. They may even approach the Office of the Family Advocate. Should all go well, a parenting plan would be drafted and entered into. This parenting plan may either be registered with the Office of the Family Advocate or made an Order of Court.

When should parents approach the Child Custody Court? High Court or Children’s Court

If parents cannot agree on a parenting plan, then a court may have to be approached. Usually, they would approach the High Court or the Children’s Court in their area of residence. In South Africa, one does not have to make use of legal representation. In other words, you may represent yourself in Court. Many times, you do not have a choice as you cannot afford legal representation. If you can afford legal representation, we advise you to make use of it.

What is the Children’s Court?

Each magisterial area has a children’s court dealing with Children’s matters. The Children’s Court would be best suited for parents who would prefer to conduct their own case. When you approach the children’s court, they provide you with forms to fill in. They would basically assist you with the process. They will issue a summons/notice to the other parent to appear at Court. Many attorneys also make use of the Children’s Court, as opposed to the High Court, when enforcing their client’s parental responsibilities and rights. Purchase a Consultation with us from our Online Shop, by clicking here.

What is the High Court?

Each province has a High Court. The Court procedure in the High Court is much more complicated than that of the Children’s Court. If you can afford an attorney, and an advocate, they the High Court is another option. Specific documentation needs to be drafted. One is called a Notice of Motion, and the other, a founding Affidavit.

What are the serious parental issues the Court looks at?

There are various pertinent issues the court looks at when deciding how contact or visitation should be exercised. Each case is unique. In this article, we will list factors that may limit the exercising of your parental right of contact or care. They are:

Child Abuse

Child abuse has many facets. It is not only physical but psychological and emotional a swell.

Unfit parenting

Not all parents are fit enough to care for a child primarily. This is especially so if there is a history of irresponsible parenting.

Living Conditions

The law in no way discriminates against parents based on their living conditions. However, it is a factor to consider in Child Custody Cases.

Psychiatric disorders

Psychiatric disorders in many cases play a role in deciding how care and contact should be exercised. If the condition is bad, a court would have to factor it in when making its decision.

How does the Court come to its decision?

The Court (Children’s Court as well as the High Court) would listen to both parents and any expert appointment. Usually, the expert would provide a report. Many times, they are the office of the family advocate or a state-appointed social worker. After looking at, and hearing everything, the court would make a decision based on what is in the child’s best interest. This article has been updated. 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 11 February 2025 by Telelaw

How do I obtain contact, custody or visitation to my child? I need some advice and assistance.

These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights. With some advice, your situation may become easier.

What are Parental Responsibilities and rights to a child?

Section 18 of the Children’s Act of 38 2005 (the Children’s Act) states the following:
18. (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.

When do parents need to enter into a Parenting Plan?

See an expert: Basically, they should see an expert like a social worker, or psychiatrist assist them in resolving the issues they have. As long as the person is suitably qualified, they may make use of their services. They may even approach the Office of the Family Advocate. Should all go well, a parenting plan would be drafted and entered into. This parenting plan may either be registered with the Office of the Family Advocate or made an Order of Court.

When should parents approach the Child Custody Court? High Court or Children’s Court

What is the Children’s Court?

Purchase a Consultation with us from our Online Shop, by clicking here.

What is the High Court?

What are the serious parental issues the Court looks at?

Child Abuse

Child abuse has many facets. It is not only physical but psychological and emotional a swell.

Unfit parenting

Not all parents are fit enough to care for a child primarily. This is especially so if there is a history of irresponsible parenting.

Living Conditions

The law in no way discriminates against parents based on their living conditions. However, it is a factor to consider in Child Custody Cases.

Psychiatric disorders

Psychiatric disorders in many cases play a role in deciding how care and contact should be exercised. If the condition is bad, a court would have to factor it in when making its decision.

How does the Court come to its decision?

This article has been updated.

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

21 Relocation with my minor child to Nigeria, Lagos (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 Lagos, Nigeria 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 three or four) 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 Cape Town or Johannesburg, South Africa, and you want to relocate to Lagos, Nigeria, 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 Lagos, Nigeria? The same applies when it comes to your minor child applying for a South African passport to relocate to Nigeria, 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 Lagos, Nigeria with my minor child? There is there 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 Lagos, Nigeria. What can I do if the other parent does not want to consent to the minor child’s relocation to Lagos, Nigeria? 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 Lagos, Nigeria, 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 Lagos, Nigeria. 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 Lagos, Nigeria, 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 Lagos, Nigeria? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Lagos, Nigeria – 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 Lagos, Nigeria, 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 Lagos, Nigeria If you require legal assistance or representation with relocating to Lagos, Nigeria 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 11 February 2025 by Telelaw

The role of a facilitator in family matters regarding children – Should he or she make legally binding decisions or directives?
When parties divorce or they approached a court of law to resolve a dispute regarding a minor child, it was customary for them to appoint a facilitator should they settle the matter. Specific clauses would be inserted into consent papers and settlement agreements which the parties sign and is made an order of Court. The clauses would basically state that the parties appoint a facilitator to resolve disputes regarding the minor child and that the facilitator has certain authority and powers. Such disputes could range from one-party wanting more contact with the child or disputes regarding aspects of education, for example, which school the child goes to, or aspects regarding extramural activities. At the end of this article you would find an example of a facilitator clause. A facilitator should be a suitably qualified person. He or she does not necessarily have to be a clinical psychologist, social worker or a lawyer. He or she should be somebody that knows family law, understands the family dynamics and is skilled in resolving issues between parties. It is therefore very important that the parties appoint a facilitator that they would feel comfortable with and one that will be compatible with their family situation.

Facilitator’s Power

It would often happen that the parties cannot resolve a dispute amicably through a facilitator. In such a case, a decision will have to be made. The facilitator would then have to issue a directive. In other words, make a firm and binding decision for the parties. A further clause would then usually be inserted into the consent paper stating that the facilitator’s directive would be binding upon the parties as if it was an order of the court. The directive of the facilitator would then remain binding upon the parties unless a court of competent jurisdiction orders otherwise. It is this latter aspect that this article deals with.

Introduction of the Facilitation Clause

Based on our history with family law matters, this specific facilitation clause came about in or about 2008, a short while after the Children’s Act came into operation. It was then customary for parties to insert this facilitation clause as a matter of course. In our experience, the family advocate’s office would insist that such a clause be inserted and furthermore the courts would have no issue therewith.

Limiting the power of the Facilitator

What has now happened since 2018, in the Western Cape at least, was that certain judges started having an issue with the fact that a facilitator had the authority of making binding decisions on the parties which had the effect of an order of Court. In other words, due to the clause stating, that the facilitator’s directive would be binding upon the parties as if it was an order of Court; certain judges began to question such authority.

The court’s reasoning

Basically, the court’s reasoning is how could judicial authority be delegated to a third party? Taking it one step back when, the courts in the past made an order incorporating the settlement agreement, which had a clause therein authorising the facilitator to make binding directives; it basically gave judicial authority to the facilitator. In other words, the facilitator had the authority of a Judge. What has now become a practice, should a facilitation clause be inserted into a settlement agreement, the office of the Family Advocate of Cape Town, at least, would endorse the Consent Paper or Settlement, Agreement but also direct the Court to determine whether or not the parties understand the role of the facilitator and that they would be responsible for the cost associated therewith.

The Family Advocates Reasoning

There could be many reasons why the Family Advocate is directing the parties to advise the court whether or not they understand the role of the facilitator. One such reason could be that they do not want parties to come to them to facilitate disputes and issues that might arise. And of course, the other reason could be due to the court judgments that recently stated that a court can’t delegate its authority to a facilitator. In our view, asking a party in court, whether or not they understand the role of a facilitator, and that they will be responsible for the cost thereof is unnecessary. The party would say that they understand the role and that they are responsible for the cost thereof. What value that has in the case of a dispute arising in the future is very little.

The future role of the facilitator

Going forward, we still recommend that a facilitation clause be inserted in settlement agreements and consent papers. We further agree that a Court cannot delegate its judicial authority to a third party, unless in exceptional circumstances. However, at the same time, we feel that the facilitator could play a crucial role in resolving disputes between the parties. Having said that, the parties need to discuss whether or not they would require a facilitator, and in the event they do, they should specifically outline the role of their intended facilitator in the consent paper or settlement agreement.

An example of a neutral facilitation clause

FACILITATOR
- A facilitator shall be appointed by the parties jointly to facilitate and assist in resolving disputes between the parties relating to the minor children;
- These disputes shall include contact disputes should one party feel that contact should be increased or decreased, or varied for either party;
- In the event of the facilitator being unable to continue as facilitator, then he/she shall appoint a facilitator in his/her place, alternatively, or should the parties be unable to agree on the appointment of a facilitator or replacement facilitator, such facilitator or replacement facilitator as the case may be shall be appointed by the chairperson for the time being of FAMAC (Western Cape);
- The facilitator shall be entitled in his/her sole discretion to appoint such other person as may be necessary in order to make a decision in respect of the issue in dispute, including the right to co-opt a facilitator or the assistance of an appropriate expert if he/she deems it appropriate or necessary; and
- The cost of sessions with the facilitator and the services of the expert shall be shared equally between the parties unless otherwise directed by the facilitator. Each Party shall, however, be liable for the facilitator’s costs incurred attendant upon such party’s written and telephonic communications with the facilitator.

Posted on 11 February 2025 by Telelaw