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

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

What to do before visiting the Benoni Children’s Court

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

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

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 Benoni Children’s Court

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

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

Posted on 11 February 2025 by Telelaw

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

What to do before visiting the Benoni Children’s Court

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 Benoni Children’s Court

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 Benoni.

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 Benoni Children’s Court

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 Benoni Children’s Court

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;

Finalising the matter in the Benoni Children’s Court

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 Benoni 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, Benoni, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Relocation with your minor child from South Africa – What are my rights?
In today’s modern times, many people decide to leave South Africa and seek employment overseas or in a nearby country. The reason for that could be many. But usually, it’s because they feel they can earn much more in a different country or live a better life. Furthermore, safety and security, and medical benefits are on the list. What often happens is one parent wants to relocate, with a child, however, the other parent has an issue with it. As you will see later, the consent of both guardians is required for a minor child to leave the Republic of South Africa.

Parents need to first discuss the issue of relocation before making a decision

We are often approached by the parent wishing to relocate with the minor child for legal advice. It is often the mother. She wants to know what her rights are regarding the child relocating with her. Now the ideal situation would be for both parents to sit down and discuss the issue. It would obviously have a big impact on their lives should relocation with the child take place. They should discuss aspects regarding contact and maintenance should relocation be a viable option. However, meeting eye to eye and having a sensible discussion on the issue is not always the case.

Effects of relocation on the parents

It often happens when parents do not agree on the issue of relocation; the parent wishing to relocate has to make some drastic decisions. Should she remain in South Africa and continue in her current employment, or remain unemployed? By remaining in South Africa, she would remain the primary caregiver of the minor child. The other option is for the parent to not fight the issue but decide to relocate and leave the child with a parent in South Africa. This could become problematic. Especially so in the case where the parent residing in South Africa was never a primary caregiver of the minor child. In other words, he or she cannot care for the child as well as the parent wishing to relocate.

What does South African law say?

Now in terms of the law, if a child should be removed from the Republic of South Africa, for traveling, or relocation, he or she requires the consent of both guardians. We will not go into the finer details of who is a guardian and what are the rights of a guardian. However, in terms of the Children’s Act, both guardians should consent for the minor child to be removed from the Republic of South Africa, and his or her return. Therefore, if the parents come to an agreement that the minor child may relocate, then the consenting parent should only sign necessary consent documents. Those documents can be obtained from the Department of Home Affairs. At the same time additional assisting documents will be of use. For example, an affidavit from the father stating that he has no issue with a minor child relocating and he provides a mother with the authority to make certain decisions regarding the minor child. These decisions could relate to the enrolment of schools, medical consent, and consent to travel within the country.

What happens if consent for relocation is refused by one parent?

Let’s say consent is not provided. What can the parent do under those circumstances? Unfortunately, the parent would have to approach the court to dispense with the consent of the other. He or she will have to convince the court that it would be in the minor child’s best interest for the relocation to take place. The parent who remains in South Africa will have to do the opposite. He or she would have to convince the court that it would be in the child’s best interest for them to remain in South Africa. Valid reasons could be that the country that they wish to relocate to is dangerous, or the child would be better suited to remain in South Africa.

More on approaching the Court when it comes to relocation of minor children

Now the problem arises as mentioned earlier. The parent wishing to relocate is left with a predicament. Does he or she remain in South Africa caring for the child or does he or she relocate and leave the child behind if consent is not given. As stated earlier, he or she would have to approach the Court. All these factors will have to be ventilated before the court and then the court will decide what is in the minor child’s best interest. We pause here to state that should a parent follow the specific route in approaching the court, he or she may want to at the same time apply for certain sole guardianship rights to the minor child. The parent would have to ask the court for certain rights, for example, should the minor child have to apply for a passport while overseas; only that parent’s consent is required. The same applies should the minor child have to be enrolled in a school, and as stated earlier, attend to a medical procedure.

If the parent relocating is a mother, she can bring up a constitutional argument. She may argue that because she is a mother of the child and gave birth to the child, it is unfair for her to obtain the father’s consent under the circumstances. He, on the other hand, may decide to travel anywhere in the world and do not require the consent of the mother, because he is not the primary caregiver of the minor child.

Summary of the issue of consent for the relocation of minor children

So in short, if the parties cannot come to an agreement on the relocation of the minor child to another country, the parents wishing to relocate should approach the court to dispense with the consent of the other parent. The other parent can oppose the application stating various reasons why it would not be in the minor child’s best interest for them to relocate. If that parent was not much involved in the minor child’s life and cannot care for the minor child; more than likely the court would not find in that parent’s favour. The bottom line is as stated, the court will decide what is best for the child.

Posted on 11 February 2025 by Telelaw