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Factors to consider when searching for child custody, divorce or child maintenance lawyers?

[caption id="attachment_8801" align="alignleft" width="260"]Child Custody Lawyer, Divorce Lawyer, Cape Town Child Custody Lawyer, Divorce Lawyer, Cape Town[/caption] Not all lawyers are the same. Just as not all doctors are the same. You won’t go to a medical doctor who is a foot specialist (podiatrist) if you have a skin problem. For that, you will see a Dermatologist. This you would do, even if the podiatrist knows a bit about skin illnesses and diseases and is, nonetheless, a medical doctor. The same principles apply to the law and to lawyers. Various lawyers specialise in various fields of law. Some know more, and some know less. You won’t meet with a property lawyer if you have been accused of medical malpractice; or would you? You get the point we are trying to bring across.

Factors to consider when enlisting legal service from a legal practitioner

There are Important factors to consider when employing, or enlisting the services of a lawyer (attorney, advocate, legal consultant, etc.) A few of these factors as follows:

Location of the lawyer

This is not always an issue as the advice can be provided via a video call or telephonically. If it comes to litigation, it may be an issue. If you live in Cape Town and the lawyer in Johannesburg, there would be additional traveling costs to consider.

The Cost or Fee of the Lawyer

Not all legal practitioners charge the same for their services. Depending on the years of experience of the lawyer, he or she would charge a higher or lower fee. The same applies to his or her expertise. If he or she is an expert in a certain field of law, the fee may be higher than a generalist attorney. Therefore, if you do not need expert advice, consult with an advocate or attorney with enough experience to be able to assist you. [caption id="attachment_8800" align="alignleft" width="269"]Advocate, Attorney, Consultant Child Custody Lawyer, Divorce Lawyer, Cape Town[/caption]

Gender of the Attorney or Advocate

There is not much that can be said about this factor. Some people prefer one gender over the other. The bottom line is to be comfortable with the person you are consulting with. Many times, especially in litigation, you may see your lawyer a few times a month for up to two (2) years.

Availability of your lawyer

Some lawyers are extremely busy and in demand. Ensure that the lawyer you are making use of has the time to attend to your matter expeditiously.

Experience of the lawyer

There is no substitute for experience. If your matter is simple, then experience may not be a big issue. If your matter is complicated, more experience is required. Obviously, as outlined above, with experience, there comes a higher price tag.

The language which is spoken by the lawyer

It may be a good idea to make use of a lawyer who speaks your first language. If there is a language barrier, the lawyer may assume certain facts. The same applies to the client.

Don’t speak to me, speak to my lawyer

You often hear the phrase, “do not speak to me, speak to my lawyer.” This phrase although popular may only be useful in certain circumstances. Unless you have many lawyers at your disposal or one that knows it all an is an expert in all areas of law, it won’t always be a good referral. Chanting that phrase may not be a good idea.

Professional services come at a fee

Not everyone can afford the services of a lawyer (attorney or advocate). Legal practitioners are trained professionals, who would charge a fee for their time and services. The same as any professional or business would charge. Luckily the law does not force one to make use of an attorney or advocate when appearing in court or dealing with legal matters. You can represent yourself in a legal matter or conduct your own defense. But please, at no point do we say you should not seek legal advice or assistance. If you can afford it, or have access to it, obtaining sound legal advice and assistance in a matter is invaluable. Now let us move on to apply the aforementioned principles to sourcing a lawyer in relation to children matters. Here we are referring to matters regarding child custody, guardianship, maintenance and so on.

Matters regarding children

When it comes to matters regarding minor children, the same principles as above apply. Maybe more so, as children are represented by adults in litigation. Most of the time it’s their parents, and sometimes, their caregivers. Sound legal advice is therefore paramount. If you have access to or can afford the services of a lawyer, it is important that you make use of an experienced and knowledgeable family law practitioner. There are many subbranches of family law. For example, a divorce lawyer may not deal with issues regarding relocation or passport application consent. Some legal practitioners practice commercial law, criminal law, and others, property law. Although one can always learn the law, making use of a legal practitioner with limited experience in a family law matter could cost you your case.

Where to find a family law practitioner?

The internet is always a good place to start. Many law firms and consultancies have websites showcasing their experience and services. Sometimes you will hear of a law firm on the radio, or on social media. Word of mouth is also a good source. Notwithstanding where you find the details of a legal practitioner, you would like to find out if he or she is the right person for your case.

Questions to ask a lawyer at your first meeting

The most important thing to determine from your lawyer is whether not he or she is capable of handling the matter at hand. If the matter is simple, then an expert in litigation would not be appropriate. However, if your matter calls for a court of law to make a decision on the matter, then a legal practitioner who has sufficient experience in litigation would be appropriate. This would be especially so when dealing with an urgent child custody matter. Therefore, you need to ensure that the lawyer you are consulting with is the type of lawyer you will require.

Practical example on which lawyer to source

Let’s say you are involved in a custody dispute. You and the other parent of the child just separated. The other parent now decides to leave the country with a minor child without your consent. Let’s say, in this case, it is the mother. Only the mother’s name is on the birth certificate. She books the ticket for her and the child and tells the authorities she does not know who the father is. She is therefore set to leave the country the next day. The father hears about this and does not want the child to leave the Republic of South Africa. He has full parental responsibilities and rights as he was actively involved in the child’s life since her birth. In this case, an urgent court application should be made. Here an experienced attorney and advocate should be approached to stop the mother from leaving the country with the minor child. After the lawyers stopped the mother from leaving the country, a few days later, she applies for child maintenance. Both parents are salary earners, and the child’s’ expenses are basic. Under these circumstances, a reasonably experienced legal practitioner would be appropriate. They are many other factors to consider when employing the services of a lawyer. This would depend on the nature of your case. 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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The prohibition of wearing headscarves for females at work and places of learning despite religious convictions and the Supreme Law of the Republic of South Africa – The Constitution.

What practical use is the fundamental right to freedom, when you are not free to be free? What practical use is the fundamental right to practice one’s universally recognised religion, but you are told not to do so by your employer or educator?  Is brilliant legislation and policies meticulously crafted, framed and inked with scented oils onto canvas, of any practical worth, if it merely serves as an apparent reference, but not to be rigorously enforced and revered? This informative article has been undoubtedly inspired by the civil matter between Major Fatima Isaacs and the South African National Defence Force. Major Isaacs is facing possible dismissal for resolutely refusing to surreptitiously remove her hijab (headscarf) after being commanded to do so. What you will be reading does not deal with the latter case per se. However, in order to naturally keep it evergreen, it deals with the fundamental Constitutional principles at play.

Does the Constitution adequately protect one from religious oppression?

Is forcing someone to act directly contrary to his or her religious beliefs and moral convictions, not a grave form of oppression? Now, does the law, independent judiciary, and the modern state, actually adequately protect and rigorously enforce the civil rights of women to sufficiently cover their heads with a headscarf due to their religious tenants and convictions? May a female be forced to remove it, if such action would mean she is acting contrary to her religion and convictions, despite our Constitution? Hence, what does our Constitution state? With Thursday passed being the 10th observed anniversary of Nelson Mandela International Day, we naturally thought it opportune to gently tap into the modest wealth of knowledge of Advocate Muhammad Abduroaf, an advocate of the High Court of South Africa. He holds a Master of Laws Degree (LL.M) in Constitutional Litigation and weathered with over a decade and a half of successful litigation experience. Read on and find out what he has to say on the constitutional issue raised and enjoy him journeying us through the past.

What does Advocate Muhammad Abduroaf have to say on religious rights?

Advocate Muhammad Abduroaf: Sometimes, to adequately understand the present, one needs to sufficiently know the historic past. South Africa was plagued with racial discrimination in the dark challenging past. Its era formally began in the late 1940s when the National Party came into power. However, laws intentionally discriminating against non-whites were in existence prior to that. Laws were arrogantly created which directly afforded certain racial groups superiority and social dominance over others, in various facets of ordinary life. This can be illustrated by the following:
  • Various population groups were created. You would be classified as white, black, Indian coloured, etc.;
  • The use of public services and civic amenities was ethnically based on the distinctive colour of your skin. Hence certain beaches were reserved for fair-skinned people, and you could not sit (or stand) anywhere on a bus if you were of a darker shade;
  • Depending on the colour of your skin, you could only work in a certain industry. Unmistakably, certain racial groups would be capable of better empowering themselves;
  • If you were classified as being white, you would be lawfully entitled to the best of state provided education;
  • Mixed marriages were prohibited as well as extramarital sex between white and black people;
  • Your skin colour would instantly determine the private land you may rightfully own and where you may live;
  • Pass laws were rigorously enforced; and
  • Presidential elections were undoubtedly not free and fair.
The architects of Apartheid clearly knew what they were doing and meticulously executed their plan. One does not have to possess a doctoral degree in human rights to tacitly agree that the Apartheid laws were degrading, humiliating and a lasting disgrace to the very thread of humanity. Nonetheless, it was rigorously enforced by the courts of law, the police force, the military, and the navy, to mention a few. Naturally, the lasting legacy of apartheid still lives on in our local communities. When will this sadly end?

The birth of our Democratic Constitution and the right to freedom or religion

The demolishment of the fundamental pillars of apartheid on paper is intimately associated with the humble birth of our Constitution. We initially had the Interim Constitution of the Republic of South Africa Act 200 of 1993, which was assented to on 25 January 1994. And then we had the final Constitution of the Republic of South Africa Act 108 of 1996. Let us quote section 1 of the final Constitution:  “1. Republic of South Africa The Republic of South Africa is one, sovereign, democratic state founded on the following values:  
  1. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
 
  1. Non-racialism and non-sexism.
 
  1. Supremacy of the constitution and the rule of law.
 
  1. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
  What a wonderful piece of necessary legislation. It starkly contradicts past apartheid laws, social policies, and practices. Now the fundamental question is precisely; how supreme is it? For this, we look earnestly at Chapter 2 of the Constitution which we quote next:   “2. Supremacy of Constitution This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”   What do you make of this? It does not only pronounce that racially discriminatory laws are invalid but at the same time, unconstitutional conduct is invalid as well. The section further places an obligation on the State and the general public to adhere to the spirit and letter of the Constitution. Therefore, all the Apartheid laws and practices which violated human rights are automatically invalid. On paper at least. The Bill of Rights Now we move to the social issue of civil Human rights as entrenched in our Constitution. Chapter 2 of our Constitution deals with the Bill of rights. Let us quote section 7 of the Bill: “7. Rights
  1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”
This section is a radical change from what was the law and policy of South Africa during the Apartheid regime. Due to our Constitution, Apartheid is supposed to have vanished from our law books. Now let us unpack the Bill of Rights next. Chapter 2 deals with the following rights, and more:
  • Equality
  • Human Dignity
  • Life
  • Freedom and Security of the Person
  • Slavery, Servitude and Forced Labour
  • Privacy
  • Freedom of Religion, Belief and Opinion
  • Freedom of Expression
  • Assembly, Demonstration, Picket and Petition
  • Freedom of Association
  • Political Rights
  • Citizenship
  • Freedom of Movement and Residence
  • Freedom of Trade, Occupation and Profession
  • Labour Relations
  • Environment
  • Property
  • Housing
  • Health Care, Food Water and Social Security
  • Children
  • Education
  • Language and Culture
  • Cultural, Religious and Linguistic Communities
  • Access to Information
However, for the practical purpose of this article, we shall look keenly at the right to religion. This is entrenched in section 15 of our democratic Constitution, and it eloquently states the following:
  1. Freedom of religion, belief and opinion
  2. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
Clearly, considering the introductory sections of this article in relation to the Constitution, does this not mean, that you have a right to observe and practice your religion as you are required to if it does not harm anyone else? Lastly, there is the limitation clause in our Constitution. It succinctly states the following: “36. Limitation of rights
  1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­
 
  1. the nature of the right;
 
  1. the importance of the purpose of the limitation;
 
  1. the nature and extent of the limitation;
 
  1. the relation between the limitation and its purpose; and
 
  1. less restrictive means to achieve the purpose.
 
  1. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”
  After carefully considering the limitation clause, it is possible for an individual’s right to exercise his or her established religion to be limited. This is precisely where the crux of this article takes us. Is it possible for a specific employer, no matter the religious convictions of the longtime employee, to intentionally limit the proper exercise of the employee’s religious rights? Under the proper scenario, it is possible. However, one would have to be very creative and gently stretch one’s mind far to find a real-life example. One scenario could be consuming an intoxicating substance based on your religious convictions whilst on security duty at work.

Commanding an employee or student not to wear a headscarf due to her religious convictions and beliefs

Promptly returning to the controversial question posed earlier on; may an employer or educator direct a female to remove her headscarf where such removal would be tantamount to a fundamental violation of her religious beliefs? At first glance, one would answer no. It would be unpermitted. It would be in violation of the employee’s right to dignity and religious practice. Accordingly, the first necessary step is established which is correctly identifying a fundamental right which is protected under the Bill of Rights. This is the right to freedom of religion. However, remember, there is a limitation clause found in section 36(1) of our Constitution referred to above. Properly applying section 36(1) of our democratic Constitution, it is comprehensible that a right to wear a headscarf is fundamental and may not be limited. The employer or educator must have very good grounds to justify the limitation of those rights. If it is due to its uniform policy, or tradition, then that is not enough. If it relates to potential life-threatening dangers that the employer, educator, employee or student and others may suffer if a headscarf is worn; then in that hypothetical scenario, limiting the right may be justified.

In conclusion

We doubt that when the Freedom Charter was adopted in 1955 and the interim constitution born, that the architects, thereof, envisioned a South Africa where a woman would be forced to remove her headscarf in violation of her religious convictions. We are certain, that should Nelson Mandela been breathing today, he would have wisely held the same convictions. To all those people who are being discriminated against due to their religion or religious beliefs and convictions in the workplace, places of learning and in public, remember, you have rights which are there to protect you. It is however up to you to make use of it.

Share this article

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

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