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

 

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

What to do before visiting the Potchefstroom Children’s Court

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

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

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 Potchefstroom Children’s Court

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

Once the Potchefstroom 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 Potchefstroom 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, Potchefstroom, 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 Potchefstroom Children’s Court

 

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

What to do before visiting the Potchefstroom Children’s Court

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

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

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 Potchefstroom Children’s Court

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

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

Related Post

Can a parent appeal a child custody order granted by the High Court or Children’s Court?

In resolving disputes regarding child custody or guardianship (parental rights and responsibilities) matters, a court will usually be approached. The court is also the upper guardian of all minor children within its area of jurisdiction. A parent or interested party may approach the Children’s Court or the High Court when it comes to parental rights regarding a minor child. The High Court, however, has greater jurisdiction when it relates to issues associated with guardianship rights. As demonstrated below, the courts’ decisions may be reviewed by a higher court. However, before approaching the court, the parties should first try to resolve the matter through entering into a parenting plan.

How are child custody court proceedings initiated?

A parent or interested party would make an application to the court. In the High Court, this would be done with a Notice of Motion and Founding Affidavit, served on the other parent or interested party. An interested party would be someone who cares for the child or significantly forms part of the child’s life. For example, a step-parent, grandparent, or aunt. Once the founding papers are served, the other party, the Respondent, would file their answering papers. Thereafter, the Applicant would reply. This is how evidence is provided in the High Court as stated. The process is different in the Children’s Court. In the Children’s Court, forms with supporting documents initiate the process.

What happens at the High Court or Children’s Court?

Once the latter initial processes are done, and all other court processes are followed, the parties would present their cases to the presiding officer. At the end of the matter, the court (the Judge or Magistrate) would give the judgement (ruling) or order. This judgement or order will be based upon all the evidence and arguments presented to it by the relevant parties. There may also be expert reports that were considered. For example, a report of the Office of the Family Advocate, a social worker or private psychologist appointed in the matter. These expert reports are very useful as the court seldom meets with the parties. The experts would interview the parents, children and other interested parties and provide their expert recommendations.

How does the court make its decision regarding parental rights and responsibilities?

After considering all the evidence presented by the parties and experts, the court will have to decide whether or not to grant the relief sought in the Application before it. The court will be guided by the underlining principle of what is best for the minor child and its experiences with regard to the type of matter before it. The court cannot act on emotion or pity. For example, feel sorry for the mother or father. Their decisions must be judicially exercised. Therefore, there would be no merit to state that the Court always finds in favour of a single mother, or a father. Each case would be decided on its own merits.

What happens after the child custody order is granted?

Now, once the court decides was best for the minor child, the court would impose an order. The order may say, for example, that the minor child should reside primarily with one parent, or an interested party, who is not a parent. Or the dispute may be regarding guardianship rights. For example, the court may make an order that both parties’ consent is not required for a passport application of a minor child. No matter what the order is, it must be adhered to by all the parties concerned.

Can the child custody court’s decision be challenged?

Now after the court heard all the evidence presented and arguments by either party and handed down its judgment and order; does this mean that its decision cannot be challenged? The answer is no. An aggrieved party may appeal the judgement. In other words, the party who is not happy with the presiding officer’s decision may approach a higher Court to revisit the matter. The higher Court would have to decide whether or not the court made the correct decision. For example, if a parent is not happy with the High Court’s decision that custody should be afforded to the grandmother; then either parent may appeal that decision.

When is it advisable to appeal?

Before a party decides to appeal a judgement or order of a court, he or she will have to ensure that there are good grounds to appeal it. In other words, the party who wishes to appeal the judgement must be able to show that the Judge misdirected himself or herself and did not apply his or her mind properly. Furthermore, had the presiding officer applied his mind correctly, a different decision would have been reached.

Practical Example of when an appeal may be appropriate

A practical example would be where all the child care experts in the matter agree that the minor child should reside with the father; but notwithstanding what the experts recommend, the court nonetheless ordered that the minor child should reside with the mother. In such a case, it would make sense to appeal the judgement, as all evidence before the court showed that the minor child should primarily reside with the father and not with the mother. On the face of it, it is clear that the judge made an error. The case should, therefore, be relooked at.

Judge’s Reason

On the other hand, the court could have had good reasons why it ordered that the minor child should primarily reside with the mother. One reason could be that the experts who recommended primary care misdirected themselves. They considered not so important factors in granting primary care. For example, the father’s wealth and his string of domestic workers at his home. In other words, they recommended custody to a parent due to him being very wealthy and can afford the best for the child. In the court’s view, the wealthy parent should then pay more child maintenance to the other parent. The mother, in this case, is better suited to care for the child, as she did since birth. The father, although very wealthy, is most of the time working overseas and unable to personally care for the child.

Know the time periods allowed should you wish to appeal a judgment

If you have valid and good grounds for an appeal, then such an appeal should be made. A later article may deal with the specific rules of court and law that relates to an appeal. The purpose of this article is to bring to the reader’s attention that you may challenge an order that relates to parental rights and responsibilities in relation to a minor child. Please note that the rules and laws regarding appeals are very strict and technical. A party would have to comply with certain time requirements before proceeding with the appeal. Therefore, should a party wish to appeal a judgement, he or she should act upon it timeously as provided for in the relevant rules of court. 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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