I am concerned about my niece’s wellbeing. Is it possible for me to obtain rights of custody and guardianship over her? The parents are still alive but divorced.

We often receive enquiries from family members of minor children wanting to know whether they can obtain rights of custody or guardianship over a minor child. The client could be a grandmother, an aunt, or in some instances, a former step-parent. Let us take you through a scenario where an aunt wishes to obtain sole custody and guardianship over a minor child. Should you be an interested party wishing to obtain parental responsibilities and rights over a minor child; feel free to contact us for a legal advice consultation.

The scenario: The minor child is being primarily cared for by the paternal aunt

The parents of a minor child, age 16, are married and living together. The minor child, who is in grade 10, frequents the home of her paternal aunt. The parents live very busy lives, and often have to travel overseas on separate business trips for extended periods. The minor child sometimes doesn’t see her parents for weeks on end. Nonetheless, she is well cared for by her aunt, during the week, and on most weekends, and whilst her parents are away on business. Basically, you can say the aunt is her primary caregiver, since birth. The aunt has her own family, however, her husband passed away before the minor child was born. She has two adult children of her own living with her. They are both at university. The minor child is very fond of them and sees them as her older siblings. She even tells her friends they are her siblings. The aunt collects the minor child from school, takes her to her extramural activities and assists her with her homework every day. She even used to bathe her at her home and makes sure she has supper before one of her parents or the driver collects her the evening. A few weeks ago, the parents separated and the father moved to a different province due to work. The mother on the other hand, who has no time for the minor child, wants her to attend boarding school. This is a different school. Her current school is close to where the aunt resides. The mother now does not want the minor child to have any contact with the aunt or any of her husband’s family. Now let us see what the law has to say about this scenario.

Do aunts and uncles have parental rights and responsibilities over their nieces and nephews?

If you are not the biological parents of a minor child, you do not have parental responsibilities and rights over him or her. In other words, you do not have a right to have contact with the minor child. If the parents do not want the aunt or uncle to visit the child; then they have to adhere to it. The same applies to decisions regarding the minor child. It is the parents who must make decisions on the minor child’s behalf. In the scenario above, the aunt can’t demand that she wants the minor child to visit her every day as she did in the past. She is welcome to ask, but if the parents refuse, that would be it. Now let us look at the law that could assist the aunt.

Does the law assist interested parties in obtaining parental responsibilities and rights?

Obviously, it won’t be in the minor child’s best interests if she is placed in a boarding school and no longer have contact with the aunt and her cousins. Luckily, the Children’s Act 38 of 2005 comes to her assistance. It makes it possible for the assignment of contact and care to interested persons by order of the court. Furthermore, the Children’s Act makes it possible for a person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship of the child to the applicant. In this case, it would be the aunt referred to above. Have a look at the relevant sections of the Children’s Act next. You may skip the reading of the relevant section of the Children’s Act and read on further below.

23     Assignment of contact and care to interested person by order of court

23 Assignment of contact and care to interested person by order of court (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary- (a) contact with the child; or (b) care of the child. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; (c) the degree of commitment that the applicant has shown towards the child; (d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and (e) any other fact that should, in the opinion of the court, be taken into account. (3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court- (a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and (b) may suspend the first-mentioned application on any conditions it may determine. (4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.  

24 Assignment of guardianship by order of court

(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. (2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; and (c) any other fact that should, in the opinion of the court, be taken into account. (3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.  

How does the law assist the aunt in the scenario above?

We would advise the aunt to make use of section 23 of the Children’s Act for the assignment of contact and care rights to her. The Application would be made to the relevant court. If she is successful, she will then still be able to have the minor child at her home after school and assist her. As the minor child is almost an adult, and her mother is around, we do not think it is necessary for her to be assigned rights of guardianship over the minor child.   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

I am concerned about my niece’s wellbeing. Is it possible for me to obtain rights of custody and guardianship over her? The parents are still alive but divorced.

We often receive enquiries from family members of minor children wanting to know whether they can obtain rights of custody or guardianship over a minor child. The client could be a grandmother, an aunt, or in some instances, a former step-parent. Let us take you through a scenario where an aunt wishes to obtain sole custody and guardianship over a minor child. Should you be an interested party wishing to obtain parental responsibilities and rights over a minor child; feel free to contact us for a legal advice consultation.

The scenario: The minor child is being primarily cared for by the paternal aunt

The parents of a minor child, age 16, are married and living together. The minor child, who is in grade 10, frequents the home of her paternal aunt. The parents live very busy lives, and often have to travel overseas on separate business trips for extended periods. The minor child sometimes doesn’t see her parents for weeks on end. Nonetheless, she is well cared for by her aunt, during the week, and on most weekends, and whilst her parents are away on business. Basically, you can say the aunt is her primary caregiver, since birth.

The aunt has her own family, however, her husband passed away before the minor child was born. She has two adult children of her own living with her. They are both at university. The minor child is very fond of them and sees them as her older siblings. She even tells her friends they are her siblings.

The aunt collects the minor child from school, takes her to her extramural activities and assists her with her homework every day. She even used to bathe her at her home and makes sure she has supper before one of her parents or the driver collects her the evening.

A few weeks ago, the parents separated and the father moved to a different province due to work. The mother on the other hand, who has no time for the minor child, wants her to attend boarding school. This is a different school. Her current school is close to where the aunt resides. The mother now does not want the minor child to have any contact with the aunt or any of her husband’s family. Now let us see what the law has to say about this scenario.

Do aunts and uncles have parental rights and responsibilities over their nieces and nephews?

If you are not the biological parents of a minor child, you do not have parental responsibilities and rights over him or her. In other words, you do not have a right to have contact with the minor child. If the parents do not want the aunt or uncle to visit the child; then they have to adhere to it. The same applies to decisions regarding the minor child. It is the parents who must make decisions on the minor child’s behalf. In the scenario above, the aunt can’t demand that she wants the minor child to visit her every day as she did in the past. She is welcome to ask, but if the parents refuse, that would be it. Now let us look at the law that could assist the aunt.

Does the law assist interested parties in obtaining parental responsibilities and rights?

Obviously, it won’t be in the minor child’s best interests if she is placed in a boarding school and no longer have contact with the aunt and her cousins. Luckily, the Children’s Act 38 of 2005 comes to her assistance. It makes it possible for the assignment of contact and care to interested persons by order of the court. Furthermore, the Children’s Act makes it possible for a person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship of the child to the applicant. In this case, it would be the aunt referred to above. Have a look at the relevant sections of the Children’s Act next. You may skip the reading of the relevant section of the Children’s Act and read on further below.

23     Assignment of contact and care to interested person by order of court

23 Assignment of contact and care to interested person by order of court (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary-

(a) contact with the child; or

(b) care of the child. (2) When considering an application contemplated in subsection (1), the court must take into account-

(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child;

(c) the degree of commitment that the applicant has shown towards the child;

(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and

(e) any other fact that should, in the opinion of the court, be taken into account.

(3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court-

(a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and

(b) may suspend the first-mentioned application on any conditions it may determine.

(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

 

24 Assignment of guardianship by order of court

(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

(2) When considering an application contemplated in subsection (1), the court must take into account-

(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child; and

(c) any other fact that should, in the opinion of the court, be taken into account.

(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

 

How does the law assist the aunt in the scenario above?

We would advise the aunt to make use of section 23 of the Children’s Act for the assignment of contact and care rights to her. The Application would be made to the relevant court. If she is successful, she will then still be able to have the minor child at her home after school and assist her. As the minor child is almost an adult, and her mother is around, we do not think it is necessary for her to be assigned rights of guardianship over the minor child.

 

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

 

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Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Queenstown Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Queenstown or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Queenstown. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Queenstown or any other city in South Africa.

What to do before visiting the Queenstown Children’s Court

Before you approach the Children’s Court in Queenstown, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Queenstown has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Queenstown Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Queenstown Children’s Court

The Queenstown Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Queenstown Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Queenstown Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Queenstown.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Queenstown Children’s Court

Once you complete the Form A and submit it to the Clerk of the Queenstown Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Queenstown Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Queenstown Children’s Court

Once the Queenstown Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Queenstown Children’s Court Application tips 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, Queenstown, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

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Relocation with my minor child to the United States of America, Los Angeles (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 Los Angeles, United States of America

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 nine or ten) 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 Bellville or Pietermaritzburg, South Africa, and you want to relocate to Los Angeles, United States, 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 Los Angeles, United States?

The same applies when it comes to your minor child applying for a South African passport to relocate to United States of America, 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 Los Angeles, United States of America with my minor child? There is another parent.

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

What can I do if the other parent does not want to consent to the minor child’s relocation to Los Angeles, United States of America?

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 Los Angeles, United States, 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 Los Angeles, United States. 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 Los Angeles, United States, 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 Los Angeles, United States of America?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Los Angeles, United States – 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 Los Angeles, United States, 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 Los Angeles, United States of America

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

Posted on by Telelaw