Lockdown Regulations Movement of Children allowed with Court Order
The plight and fight of unmarried fathers in obtaining primary care (custody) of their children in South Africa. Can the battle be won, and what are their rights?
By Advocate Muhammad Abduroaf (LL.B LL.M) There is a common misconception that if a child was born out of wedlock, only the mother can be the primary caregiver of the child concerned. This may however generally be the case. However, it is presumed by some that if a mother cared for the child since his or her birth, the father would not be able to be the child’s primary caregiver. In other words, the child would no longer live with the mother, but with the father. We do not blame our clients for thinking so. That is the stereotype. However, as the world changes, so does the law. We are often approached by fathers who have a child that was born out of wedlock. He and the mother most probably lived together when the child was born. But things did not work out between them. The mother moved out and lived with her parents or on her own. The father would then regularly have contact with the child. The type of contact would be decided by the mother. Now the question is, even if the child is 10 years old, is it theoretically possible for the child to be cared for by the father and live with him primarily? The answer to that is yes. This is so, as the law looks at what is best for the child concerned.What is the best interests of the child principle when it comes to parenting?
Both the South African Constitution and the Children’s Act, says that the child’s best interests are given priority. In other words, a child’s best interests are of paramount importance in matters relating to it. Therefore, for one to assume at the outset, that only mothers are the best primary caregivers, it is not only incorrect but potentially dangerous when dealing in children matters. The law expects us to look at all factors, not only who historically looked after the child, but also, the possibility of whether the father can better care for the child go forward. Also, as the child’s best interests are of paramount importance, deciding as to whether or not to move a child from the primary care of a mother to that of the father should not be done lightly. Therefore, even if the father 10 years later, can on the face of it care better for the child than the mother, this should not be the deciding factor. One would need to look at the emotional and psychological impact it would have on the child as well. 
What would be an ideal situation where moving the child from the mother to the father would be warranted?
In our view, material comforts are not reason enough to move a child from the primary care of a mother to that of a father. If the father is a wealthy person, and the mother not, he can be ordered to pay more child support towards the child’s expenses. However, if the child is of a certain age, and he needs to have certain living conditions, and the father has it, then that would be a possible factor. For example, if the child is a gifted swimmer, 17 years old and in matric, a need to train consistently, then it makes sense that the father’s living amenities may be an important factor to justify the movement of the child.Drug Abuse, Alcohol Abuse, and Mental Illness. Are these factors?
Then there is the obvious reason to move the child from the primary care of the mother to that of the father. This would be because the mother is incapable of caring for the minor child. She may have developed a mental illness, become an uncontrollable alcoholic, or addicted to illegal drugs. However, this alone does not automatically call for the father to be the minor child’s primary caregiver. It must first be determined that he can in fact care for the child. If the father only had supervised contact with the minor child and has his own issues, then in such a case, it may be better if the child is placed in foster care.So it all depends on the facts and circumstances of the child and parents?
What we are attempting to demonstrate above is that depending on the facts and circumstances, it may be best that a child is moved from the care of a mother who cared for the child since birth, and be placed in the care of the father. The circumstances do not necessarily have to be serious like alcoholism a drug abuse on the part of the mother. Other reasons could be the academic needs, or the preference of the child, depending on his or her age. What can a father do if he wants to have primary care of his 10-year-old child? As stated above, the law looks at what is best for the child when it comes to who is to be the primary caregiver. It is just not there for the taking. If the parents can agree to a change of primary care, then the law would in most instances respect such a decision. However, if they cannot agree, the father would have to approach the competent court. But before doing so, he should attempt to mediate the matter.What about the Child Care expert’s recommendations (Social worker, psychologist, Office of the Family Advocate)?
If mediation fails, and the matter proceeds to court, the court may decide to call on child care experts to assist the court in the matter. A social worker, psychologist, or the office of the family advocate may be appointed to provide a report and recommendations to the court. The court would only be guided by this document. In other words, the court would not be bound by the recommendations of the experts. If the court determines based on all the facts of the matter, that it would be in the minor child’s best interests for the father to have primary care; the court would then so order it. Therefore, in answering the question posed above; yes, an unmarried father in South Africa can obtain full custody of a 10-year-old child. This depends on the facts of the matter of course. Advocate Muhammad Abduroaf, Advocate of the High Court of South Africa Member of the Legal Practice Council 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
Child Maintenance Court – What do you have to know to win. Tips and Tricks
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Child Custody of Parents[/caption]
Best interests of a child: When it comes to child maintenance, the child’s best interests are of paramount importance. This principle is immortalised in our Constitution and applied in our Courts of Law. Therefore, in relation to child maintenance matters, and specifically to the child maintenance court, the moment a parent files an application for child maintenance, the principal should apply. Before we move on, on a side note, it is not only child maintenance that the maintenance court deals with. A spouse may take the other to the maintenance court for personal maintenance. Read on above a Successful Child Maintenance Appeal before the Full Bench Argued by Adv M AbduroafParental Maintenance Obligations
Both parents have a duty of support towards their minor child’s proper living and upbringing. This should be according to their means, standard of living, station in life, and the needs of the child. This is found in our common law and further applies to divorced parents. According to section 15(2) of the Maintenance Act, the duty “extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.” Furthermore, the duty is not discharged where one parent earns substantially more than the other. According to section 15(3) of the Maintenance Act, in determining the maintenance amount, the maintenance court must take into consideration the following: “(i) that the duty of supporting a child is an obligation which the parents have incurred jointly; (ii) that the parents’ respective shares of such obligation are apportioned between them according to their respective means; and (iii) that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. (b) Any amount so determined shall be such amount as the maintenance court may consider fair in all the circumstances of the case.” Lastly, there is an onus on both the maintenance officer and the maintenance magistrate in placing evidence before the court in determining a fair maintenance amount. This is our starting point going forward.Processing the Maintenance Application
When a parent approaches the maintenance court for child maintenance, it is the duty of the maintenance clerk to expeditiously process the application. In doing so, the clerk through the other resources of the maintenance court, should ascertain the details of the other parent, and ensure that he or she is brought to court as soon as possible for a maintenance enquiry before a maintenance officer. Therefore, for example, should the maintenance clerk not have the living or work address of the father, then he or she must enlist the assistance of the maintenance investigator to obtain it. For that, he or she can make use of the search and tracking resources the maintenance investigator makes use of and has access to. Getting the non-paying parent to the maintenance court
After the maintenance application has been processed, it is the duty of the maintenance court to ensure that the non-paying parent makes his or her way to the maintenance court as soon as possible for a maintenance enquiry. This enquiry is held before a maintenance officer. Even if the maintenance court’s diary is quite full, it should still expedite this process, giving both parents adequate time to make arrangements to appear in the maintenance court. Therefore, if the next available date for a maintenance enquiry is in three (3) months time, the parties can use this time to make arrangements with their work, obtain necessary information for the enquiry, or make alternative school traveling arrangements for the kids. There should therefore not be a delay in notifying the parents of the date of the maintenance enquiry. Furthermore, when notified of the court date, both parents receive a document stating what information they should bring with to the maintenance enquiry. These include three (3) months bank statements, and salary advices as well as proof of expenses. Giving the parties adequate time to obtain this information would be vital and, in the child’s best interests. The last thing we want is for the matter to be postponed to another date due to either parent not having been given adequate time to obtain the documents, even though the mother made the application many months ago. The maintenance enquiry before a maintenance officer
The maintenance enquiry is the next legal step in the process. This is where things get interesting. Sometimes, at this enquiry, it is the first time the parents are in the same room together, since the child was conceived. Quite often, both parents do not know much about the current financial affairs of the other parent. The parent asked to pay child support, furthermore, does not know what the child costs to maintain.Denial of paternity
What sometimes happens, is that the father denies paternity. This he would either do out of spite or due to genuine doubt on his side. This would often be the case if there was a brief encounter between the parents when the child was conceived. Sometimes the father is married to someone else, and for the sake of his current marriage, he needs to deny paternity. Once the paternity tests are finalised, the parties would need to return to court again for the results. If the results are positive, in that he is the father, then the enquiry proceeds. If he is not the biological father, the application is removed from the court roll.Role of the maintenance officer
Again, the golden standard in which the enquiry should be conducted is that of the child’s best interests. This is of paramount importance. The maintenance officer should, therefore, ensure that all the financial information about the parties are properly disclosed. This is very important. However, at the same time, the maintenance officer should try to settle the matter, taking into consideration the child’s best interests. Should the parents not be forthcoming regarding their income and expenses, and the needs of the child, then the maintenance officer must subpoena witnesses if need be and make use of the maintenance investigator which we deal with next. The maintenance investigator
Section 7(1)(d) of the Maintenance Act empowers the maintenance officer to “require a maintenance investigator of the maintenance court concerned to perform such other functions as may be necessary or expedient to achieve the objects of this Act.” Section 7(2)(e) of the Maintenance Act empowers the maintenance investigator after so being instructed by the maintenance officer, to: “gather information concerning- (i) the identification or whereabouts of any person who is legally liable to maintain the person mentioned in such complaint or who is allegedly so liable; (ii) the financial position of any person affected by such liability; or (iii) any other matter which may be relevant concerning the subject of such complaint; or (f) gather such information as may be relevant concerning a request referred to in subsection (1) (c). Now that we looked at the importance of the role of the maintenance officer and maintenance investigator, we move on to the role of the maintenance magistrate. This is where the formal enquiry takes place.
The formal enquiry before a Magistrate
Should the parties not be able to come to an agreement regarding the amount of child maintenance to be paid at the enquiry before the maintenance officer; the matter would have to go before the maintenance magistrate for a formal enquiry. Here the court has to properly consider the means and needs of the mother, the means and needs of the father, and the needs of the minor child. Thereafter, make a maintenance award. There is a legal obligation upon the maintenance officer and the magistrate to conduct a thorough enquiry. The court should not play the role of an umpire. Therefore, a passive attitude should not be taken by a judicial officer in a maintenance enquiry and then give judgment. Should all go well, at the end of the enquiry, a maintenance award would be made.Sharing is Caring
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