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

advice-child-maintenance-child-custody-divorce 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?

advice-child-maintenance-child-custody-divorceEach 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?

advice-child-maintenance-child-custody-divorceThe 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 by Telelaw

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

advice-child-maintenance-child-custody-divorce

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?

advice-child-maintenance-child-custody-divorceEach 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?

advice-child-maintenance-child-custody-divorceThe 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

 

 

 

Related Post

Most family law matters come with heightened emotions and stress. It, however, does not always have to be that way. Staying focused and rational is important to get the best results.

Many legal practitioners will tell you, the one aspect of family law, that differentiates it from other branches of law, is the emotions that it brings to their clients. It would often happen that a client breaks down, or sheds a tear in your office. This is understandable, as family law issues have a lot of history behind it. Even simple family law legal matters, for example, the terms of an antenuptial contract, can stir emotion. The lawyer under such cases has to act as a mediator, pacifier and legal advisor at the same time.

Types of family law matters that cause heightened emotions and anxiety

Before we delve into this topic, let us first bring things into perspective. These are some of the family law matters we are referring to:
  • Divorces (Contested or Undefended);
  • Domestic Violence matters;
  • Child maintenance disputes; and
  • Child custody disputes.
The actual list is more extensive. You may even want to consider including last wills and testaments and winding up of deceased estates. As can be seen from the types of matters mentioned, there are always children involved or personal relationships. Some of these relationships have lasted for decades. We often see people who were married for more than 30 years, getting divorced. And in other cases, the relationship, albeit personal, could have been for a very short while, but still, elicit a lot of emotions. For example, a domestic violence family legal matter.

The personal nature of family matters makes it harder to deal with

One of the challenges for a legal practitioner is to try to convince the client that he or she should trust the law, and not focus too much on the other party. For example, in a divorce matter, where a spouse has been abused or constantly been bullied during the relationship. The abused spouse would very often agree to sign away everything just to get divorced speedily. This is not only unfair but could lead to many issues in the future. This situation must be avoided at all costs.

Intimidation in abusive relationships

Then we have the challenge in a domestic violence matter. A party who has been abused would agree on withdrawing an application for a protection order, even though it is dangerous to do so. Or there is the situation where a party would agree that a protection order is issued against them due to being intimidated either by the other party or by his or her lawyer. This they do not do because of having committed domestic violence, but just to get the matter over and done with. The consequence of that is the applying party would have an interdict and a warrant of arrest against you which may be abused.

Intimidation in child maintenance or alimony cases

We cannot count the number of times we have been told that the reason why a parent does not want to approach the maintenance court, is due to being told by the other parent that he or she will get much less than what they are currently receiving. This is emotional and psychological abuse and not in the child’s best interest. One reason for believing the abuser is due to the relationship the parties had. The abuser was controlling and abusive during the relationship, and the victim has been brainwashed into believing everything the abuser said.

What people must try to understand in family legal matters?

Although it is understandable for someone to be anxious when dealing with family law related matters, it is important to note that issues need to be dealt with properly. If your spouse was abusive during your relationship, that does not mean it has to continue after your relationship ended. There are laws in place to protect people from abuse and violence. For example, the Domestic Violence Act. If you make use of the law, you would have a better chance of getting the legal results you want. Go to the police if necessary.

Final words to people who are intimidated by, or is afraid of the other party

Although it is easier said than done, we implore people not to allow themselves to be bullied when it comes to family law matters. This includes being intimidated by the other party, or his or her lawyer. If you have rights; enforce them. Believe in yourself and your cause and others will learn to respect it. Many cases are won by unrepresented litigants who were up against a team of lawyers. Moreover, no one has the right to belittle you or deny you of your rights. Take a stand and fight for what is right. 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

What are the Legal Principles applicable to minor Children’s Relocation matters? Are there differences between Local or provincial and International Relocation?

If parents cannot agree on the issue of relocation of minor children with a parent, a court of law would have to step in. If the parent who wishes to relocate is successful, it would mean the other parent would not have contact with the minor child as he or she used to. This is a difficult situation to deal with if you are not the custodial parent of the minor child. For one, you may not see you child face to face every day or every weekend as you used to. You will, therefore unfortunately not see your child grow and be there during his or her various developmental stages in life.

The challenges with minor children relocation matters

That is why relocation matters can be difficult to deal with by the parents due to the high amount of emotions involved. The usual issues that parents would “fight” over are contact and care issues while the parents are living in the same town or suburb. The court would decide whether a parent can see a child from 11:00 or from 14:00 or on a Monday or Sunday. However, in relocation matters, the effect of the court order is that contact would not take place in person, and as often and regularly by the nature of the relief sought.

How contact is exercised when minor children relocation

We do agree that there are other means of contact if relocation is allowed. That includes video contact, text and email etc. The minor child can also visit the parent during school holidays, or the parent can visit the minor child. In the case of international relocation, the option can become very costly and sometimes impossible. Therefore, parties should strongly look into those alternative means of contact in the event the application for relocation is successful.

Minor children relocaiton and the Legal Principles applicable

This article deals with the issue of the best interest of minor children in relocation matters and the principles applicable. Each case is different, just as each family and its dynamics differs vastly from the next. What follows is an extract of a court case that dealt with the issue of relocation. You can apply those principles to your case.

What does our courts say in relocation matters?

In the matter of LW v DB 2020 (1) SA 169 (GJ), the Gauteng High Court dealt with the issue of the best interest of minor children specifically in relocation matters. It outlined the principles that follows.
Principles applicable to relocation of children Certain guidelines may be distilled from the Constitution, judgments of South African courts, and conventions to which South Africa is a signatory: (a) The interests of children are the first and paramount consideration. (b) Each case is to be decided on its own particular facts. (c) Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained. (d) Where a custodial parent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. (e) The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question. The best interests of the child Our courts adhere to the ‘best interests’ approach as they are required to do by the Constitution. On the papers, which include the founding, answering and supplementary affidavits as also the report emanating from the Office of the Family Advocate, reference was made to a number of issues associated with the life, circumstances, wellbeing activities, relationships, dependencies of R — all of which contribute to a greater or lesser extent, and in isolation or in conjunction, to determining his ‘best interests’. Amongst these issues are R’s attachment to both parents and grandparents, the disruption of R’s bond with his father if he were to move to Cape Town, the somewhat conflicted relationship between LW and DB, the demands made on both parents to hold down employment and earn livings to support their child, the arrangements made for the care of R in Vereeniging, Vanderbijlpark and Cape Town, the personal needs and desires of all adults involved in this issue, taking into account the constitutional acknowledgments of the rights of human dignity, freedom and equality. In the unreported judgment dissenting from the majority of the court in Ford v Ford WLD 5001/04, I discussed the manner in which one may attempt to give meaning and content to the concept of the ‘best interests of the child’. The majority of the court expressed no view on this issue and the Supreme Court of Appeal did not disagree therewith. It is convenient to repeat those portions of the judgment which are relevant to the issue before us today. Our law has developed the ‘best interests of the child’ approach which has now been enshrined in the Constitution which, in s 28(2), proclaims that ‘a child’s best interests are of paramount importance in every matter concerning the child’. This principle has become known, in one form or another, in many national legal systems and has been recognised in international instruments. However, some writers suggest that the principle has yet to acquire much specific content or to be the subject of any sustained analysis designed to shed light on its precise meaning. The result is that diverse interpretation may be given to the principle in different settings. I suggested that care also be taken to avoid slavish adoption of such content as has been given to specific legislation or instruments, since language, as also constitutional, cultural, familial, social and other traditions, inform contrasting interpretations. The full complexity of the South African Constitution is continually being explored. Section 28(2) and the ‘best interests’ principle do not represent and are not situate within a Constitution which envisages a monolithic or unidimensional approach reflecting a single, unified philosophy of children’s rights. There can be no specific and readily ascertainable recipe for resolving the inevitable tensions and conflicts that arise in each given situation. The respective concerns and entitlements of different actors involved cannot be assumed to always be clearly defined and delineated. In different situations, other interests to be balanced may include, not only the particular child but also siblings, parents, nuclear and extended families and sometimes the local community, society and the state. The ‘best interests’ principle is used to provide a framework for addressing the entire range of major issues affecting children. The principle may be invoked in relation to and in the context of the separation of the child from the family setting, adoption and comparable practices, parental responsibility for the upbringing and development of the child, the child’s involvement with the police and the justice system, the provision of housing and social services, access to schooling and so on.
  If you wish to relocate with your minor child to a different province or abroad, consider the above principles. It would make your case much easier if you understand them.

Posted on by Telelaw

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