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

 

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

What to do before visiting the Durban Children’s Court

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

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

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 Durban Children’s Court

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

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

Posted on by Telelaw

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

 

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

What to do before visiting the Durban Children’s Court

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

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

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 Durban Children’s Court

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

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

Related Post

Is my landlord allowed to evict me and my family during the National Lockdown if we cannot pay our rent? What are my legal rights considering COVID-19?

We are today experiencing day 99 of the South Africa national lockdown. Many people are out of work, and unable to pay their rent, mortgage bonds and so on. COVID-19 came with it a lot of challenges and drastically affected everyone’s lives. During this period, Our Lawyer received many queries regarding the eviction of people from their homes during the national lockdown. As people cannot pay their rent or monthly mortgage bond repayments, eviction is on many people’s minds.

Commercial Rent Defaulters during the National Lockdown

This article does not deal with the eviction from commercial property. For example, it would not apply to you if you are a business owner and cannot afford to pay your commercial rent. Here reference can be made to gyms, fitness centres, nightclubs, and those other businesses specifically prohibited from operating during the lockdown. As well as those businesses which are struggling to survive during the lockdown. In such a case, the current lockdown regulations won’t be of much use. You and your business would be left at the mercy of the court. Nonetheless, we are sure the courts would be sympathetic depending on your specific situation.

The default of mortgage bond payment – Do the Regulations assist?

If you are unable to pay your bond, the bank must first take you to court and ultimately be able to declare your property executable. Once this is done, then the property would be sold at a public auction. If you decided not to leave after the sale, then the new owner would have to consider eviction proceedings. At that point would this article apply to you. Now moving on.

Evictions at the start of the lockdown – What was the law then?

At the start of the lockdown, evictions where prohibited. However, now in alert level 3, things are the same, but not quite. Have a look at this article posted at the start of the lockdown, “Occupants and tenants may not be evicted from their homes during the National Lockdown. This is so even if you are in arrears with your rent or bond, or the lease has been terminated.”

Latest eviction regulations in South Africa – Has things changed?

In terms of the current Disaster Management Act Regulations, eviction orders are to be stayed and suspended until the last day of the alert level 3 period. This only relates to your home or land. The court dealing with the eviction matter may order that the eviction not be stayed and suspended if it decides that it is not just and equitable to do so until the last day of the Alert Level 3 period. However, if the court determines it isn’t just and equitable to suspend the eviction order, it may order that the eviction takes place during level 3. The regulation reads as follows:
  1. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.
(2) A competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No, 19 of 1998): Provided that an order of eviction may be stayed and suspended until the last day Of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period

Let us summaries: What does this mean to the ordinary tenant when it comes to evictions during the lockdown?

In short, your landlord, or owner of the property may approach the court to have you evicted from your home. However, should the court determine that you are an unlawful occupier of the land or premises, it would grant an eviction order, but make an order that it remains suspended until the end of alert level 3 unless the court decides that it would be just and equitable to order otherwise. Nothing, however, prevents the Minister from extending the eviction prohibition in alert level two or one when the time arrives. We will, however, have to wait and see. Read on to learn more about how evictions work. Evictions from your home must be lawful For an eviction to be lawful, the person evicting you must obtain a court order. Without a court order, the sheriff of the Court cannot remove you from your home. You can, therefore, refuse to vacate your home. During the lockdown, the sheriff of the court cannot remove you, even if he or she comes with a court order. Constitutional provisions regarding evicting people from their homes Section 25 of our Constitution states the following: “25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” Furthermore, section, section 26 (3) of our Constitution states: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998 Therefore, for someone to be evicted, an application must be made to the court. The law applicable is the Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998. It came into effect on 5 June 1998. In it, it lays down the procedure for the eviction of unlawful occupiers. In short, the owner or person in charge of the premises must follow the processes in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. It entails giving you notice to appear in court to say your say. The court would then decide whether or not you should be evicted after hearing both sides of the story. 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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Zoom webinar during Woman’s Month hosted by Advocate Muhammad Abdurof – Child Custody and Relocation

Below the video are some of the questions posed by the registrants that were not answered during the webinar held on 21 August 2020 at 11:00, hosted by Advocate Muhammad Abduroaf. Q: The father has only been paying half the maintenance – he was only covering the minor schooling. Now he has decided to study full time and stopped paying the minor school fees. The minors Contract at school has been terminated and is currently not attending school. I am unable to find a school at this time since half the year is gone. I am currently filing a maintenance application. A: We presume that there is no maintenance order in place. If that is the case, approaching the maintenance court is the correct thing to do. It sounds unreasonable for the father to only pay half the maintenance. The same applies to him stopping paying school fees. The court would listen to both sides and decide what is a fair amount for the father to pay despite him deciding not to work. If there is a court order in place, the court should enforce it and either attach his property and sell it, or proceed criminally. Q: greetings…my question is on Sole guardianship. The father has relocated and has never made contact with the minor. Its 9 years now. I want to travel with my child but hoe affairs won’t allow it. Please assist A: You have a very strong case for an order that you be given sole guardianship over your child. After the court granted you that order, you can travel without worrying about consent. Q: Which process should I follow to gain full child custody? A: You would have to approach the Court. If there is a court order in place, then you need to apply to have it varied granting you sole custody. If not, you can approach the court to grant you sole custody. The court would look at what is best for the child. Q: What happens when a father only saw a child on the day of the paternity test and never again when applying for access to the child I’m denied and immediately the child is moved to the Eastern Cape from Gauteng without my knowledge. Yet the court ordered me to carry on paying rent for a 3-year-old as the mother told the court that the child must also pay rent. Right now I’m paying for rent yet the child is not even staying there and I’m paying for creche in Gauteng but the child is in EC. When I lodged for reduction as the child no longer stays here and no longer going creche the court keeps on postponing as the mother doesn’t come to court anymore and no warrant of arrest is issued just postponed that all since May 2020. A: You followed the correct procedure by approaching the maintenance court. We advise you to keep putting pressure on the maintenance court to finalise the matter. Q: In terms of child custody can a parent apply at the Children’s court to have sole custody if the other parent (primary caregiver) contributes less towards the child’s financial maintenance? A: You can apply, but the order would be based on what is best for the child. However, a lower contribution by the primary caregiver does not sound like a sound reason. Q: How does a parent ( primary caregiver) deal with the other parent negatively influencing the child or having the child saying statements that are harsh and recording the child.   A: We suggest that you see a parenting counsellor or a social worker to assist both parents in resolving those issues. If that does not help, then approaching the court may be the best option. Q: Just clarify related to this topic what are my options if I am indeed about to relocate but still in the process of the divorce pleadings have not been closed and there is no settlement agreement but have primary residence according to Rule 43 order. A: The divorce and the relocation are two separate issues. You would have to return to South Africa on the trial date of the divorce. Q: Should there be a dispute to relocation by either parent what is the required route to be followed by either of the parties?If the route is for the high court to be followed what are the parameters pertaining to the disputing party being informed notice periods required and mandatory rules for addressing high court? (can this be done as the individual alone or is an attorney/advocate mandatory? As the disputing party are there any recommendations if thorough understanding and recommendations or research into the case related circumstances are researched in terms of legal precedence/ cases relevant for the defence of the dispute to be undertaken onerously? A: Court rules need to be followed and all parties need to be properly informed about court dates etc. Q: Shared Custody. Children ages 12 and 17. Want to stay permanently with me. Daughter 18 already staying with me. A: If the children want to stay with you and the other parent does not want that, then it is best to see a mediator or social worker to assist in resolving the issue. If that cannot be done, then the court would need to get involved. Q: What can a father do to help his 16-year-old son to escape the emotional abuse of the child’s mother? The father is financially exhausted as the mother has NO regard for a High Court order that was obtained by the father when the child was 2 years old. Now the child wishes to stay with his father. A: The father needs to enforce the High Court Order. Otherwise, depending on the facts, he needs to approach the court for a variation of the order. Q: What are my rights as a father with regards to the child? Under what conditions is the mother allowed to “withhold” the child from interacting with the father? Does my financial instability give more rights to the mother enough to not allow a relationship between myself and the child? What is the best way to go about legally sharing (visitation responsibility etc) rights? A: This issue was dealt with at the start of the webinar. We would, however, like to advise you to try to see a mediator with the mother. If that is not possible, you should approach the Children’s Court or the High Court.    

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