Muslim Marriages South Africa – Rights Children Advocate Abduroaf

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Muslim Marriages South Africa – Rights Children Advocate Abduroaf

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Is it possible for an unmarried father to obtain full custody of a 10-year-old child and not the mother? – A simplified family lawyer’s perspective.

By Advocate Muhammad Abduroaf 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 always live with the mother, and never with the father. We do not blame our clients for thinking so. That is the stereotype. As the world changes, so does the law.

The popular scenario regarding single parenting?

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 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.

Best interests of the child principles when it comes to children

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 him or her. Therefore, for one to assume at the outset, that only mothers are the best primary caregivers, is not only incorrect but potentially dangerous when dealing in children’s 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. Moreover, 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 also 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 minor 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 in granting the father primary care. For example, if the child is a gifted swimmer, and 17 years old, and in matric, and needs 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.

Obvious reasons to have the child primarily cared for by the father or another party

Then there is the obvious reason to move the child from the primary care of the mother to that of the father or another person. This would be because the mother is totally incapable of caring for the minor child. She may have developed a mental illness, be admitted to a drug rehabilitation facility, or neglects the child whilst in her care. In such a case, one would look at the father. If he too has issues, then the child would need to be placed in alternative care. For example, foster care, or with another relative.

Is it possible for an unmarried father to obtain full custody of a 10-year-old child?

From the above, it is clear that it is possible for an unmarried father to obtain full custody of a 10-year-old child. It all depends on the facts of the matter. Whilst mothers may be best to care for the child in his or her early age of development, once should not lose sight of the fact that the father could care better for the child. If he cannot, then the child should remain in the primary care of the mother. 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 Roodepoort Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Roodepoort 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 Roodepoort. 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 Roodepoort or any other city in South Africa.

What to do before visiting the Roodepoort Children’s Court

Before you approach the Children’s Court in Roodepoort, 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. Roodepoort 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 Roodepoort 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 Roodepoort Children’s Court

The Roodepoort Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Roodepoort 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 Roodepoort 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 Roodepoort.

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 Roodepoort Children’s Court

Once you complete the Form A and submit it to the Clerk of the Roodepoort 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 Roodepoort 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 Roodepoort Children’s Court

Once the Roodepoort 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 Roodepoort 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, Roodepoort, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

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