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

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

What to do before visiting the Virginia Children’s Court

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

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

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 Virginia Children’s Court

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

Once the Virginia 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 Virginia 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, Virginia, 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 Virginia Children’s Court

What to do before visiting the Virginia 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 Virginia 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 Virginia.

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

ABC Steps to Appealing to the Constitutional Court of South Africa
If you are unhappy with a Court’s decision, you have a right to take the decision on appeal. Section 2 of the Constitution of the Republic of South Africa (Act 108 of 1996) states: This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Therefore, any act of parliament (e.g. Legislation) or decision of the government must be in conformity with the rights and obligations entrenched in our Constitution. In South Africa, we have the Constitutional Court. This is stated in Section 166 of our Constitution. Section 167 of the Constitution, with its subsections, states the following:
The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.
A matter before the Constitutional Court must be heard by at least eight judges.
The Constitutional Court
is the highest court of the Republic; and
may decide
constitutional matters; and
any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
makes the final decision whether a matter is within its jurisdiction.
Only the Constitutional Court may
decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;
decide applications envisaged in section 80 or 122;
decide on the constitutionality of any amendment to the Constitution;
decide that Parliament or the President has failed to fulfil a constitutional obligation; or
certify a provincial constitution in terms of section 144.
The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court if South Afirca, or a court of similar status, before that order has any force.
National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court
to bring a matter directly to the Constitutional Court; or
to appeal directly to the Constitutional Court from any other court.
A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.
Therefore, if you want to challenge a court’s decision on a Constitutional basis, the highest court you can go to is the Constitutional Court.
How do I take a matter to the Constitutional Court?
The Constitutional Court has its own rules. Therein, you would find the procedure to follow when bringing a matter to the Constitutional Court. Constitutional Court Rule 19 deals with Appeals. It states the following:
Appeals
(1) The procedure set out in this rule shall be followed in an application for leave to appeal to the Court where a decision on a constitutional matter, other than an order of constitutional invalidity under section 172(2)(a) of the Constitution, has been given by any court including the Supreme Court of Appeal, and irrespective of whether the President has refused leave or special leave to appeal. (2) A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directly to the Court on a constitutional matter shall, within 15 days of the order against which the appeal is sought to be brought and after giving notice to the other party or parties concerned, lodge with the Registrar an application for leave to appeal: Provided that where the President has refused leave to appeal the period prescribed in this rule shall run from the date of the order refusing leave. (3) An application referred to in subrule (2) shall be signed by the applicant or his or her legal representative and shall contain— (a) the decision against which the appeal is brought and the grounds upon which such decision is disputed; (b) a statement setting out clearly and succinctly the constitutional matter raised in the decision; and any other issues including issues that are alleged to be connected with a decision on the constitutional matter; (c) such supplementary information or argument as the applicant considers necessary to bring to the attention of the Court; and (d) a statement indicating whether the applicant has applied or intends to apply for leave or special leave to appeal to any other court, and if so— (i) which court; (ii) whether such application is conditional upon the application to the Court being refused; and (iii) the outcome of such application, if known at the time of the application to the Court. (4) (a) Within 10 days from the date upon which an application referred to in subrule (2) is lodged, the respondent or respondents may respond thereto in writing, indicating whether or not the application for leave to appeal is being opposed, and if so the grounds for such opposition. (b) The response shall be signed by the respondent or respondents or his or her or their legal representative. (5) (a) A respondent or respondents wishing to lodge a cross-appeal to the Court on a constitutional matter shall, within 10 days from the date upon which an application in subrule (2) is lodged, lodge with the Registrar an application for leave to cross-appeal. (b) The provisions of these rules with regard to appeals shall apply, with necessary modifications, to cross-appeals. (6) (a) The Court shall decide whether or not to grant the appellant leave to appeal. (b) Applications for leave to appeal may be dealt with summarily, without receiving oral or written argument other than that contained in the application itself. (c) The Court may order that the application for leave to appeal be set down for argument and direct that the written argument of the parties deal not only with the question whether the application for leave to appeal should be granted, but also with the merits of the dispute. The provisions of rule 20 shall, with necessary modifications, apply to the procedure to be followed in such procedures. As you would note, you should first obtain leave to appeal. Once that has been granted, you can then go ahead with the next steps.
What is the procedure once leave to appeal has been granted?
Rule 20 of the Constitutional Court Rules deals with the Procedure on Appeal. It states:
Procedure on appeal
(1) If leave to appeal is given in terms of rule 19, the appellant shall note and prosecute the appeal as follows— (a) The appellant shall prepare and lodge the appeal record with the Registrar within such time as may be fixed by the Chief Justice in directions. (b) Subject to the provisions of subrule (1)(c) below, the appeal record shall consist of the judgment of the court from which the appeal is noted, together with all the documentation lodged by the parties in that court and all the evidence which may have been led in the proceedings and which may be relevant to the issues that are to be determined. (c) (i) The parties shall endeavour to reach agreement on what should be included in the record and, in the absence of such agreement, the appellant shall apply to the Chief Justice for directions to be given in regard to the compilation of the record. (ii) Such application shall be made in writing and shall set out the nature of the dispute between the parties in regard to the compilation of the record and the reasons for the appellant’s contentions. (iii) The respondent may respond to the application within 10 days of being served with the application and shall set out the reasons for the respondent’s contentions. (iv) The Chief Justice may assign the application to one or more judges, who may deal with the matter on the papers or require the parties to appear before him or her or them on a specified day and at a specified time to debate the compilation of the record. (v) The judge or judges concerned shall give directions in regard to the compilation of the record, the time within which the record is to be lodged with the Registrar and any other matters which may be deemed by him or her or them to be necessary for the purpose of enabling the Court to deal with the appeal, which directions may include that the matter be referred back to the court a quo for the hearing of additional evidence specified in the directions, or that additional evidence be put before the Court by way of affidavit or otherwise for the purpose of the appeal. (2) (a) One of the copies of the record lodged with the Registrar shall be certified as correct by the Registrar of the court appealed from. (b) Copies of the record shall be clearly typed on stout A4-size paper, double-spaced in black record ink, on one side of the paper only. (c) Legible documents that were typed or printed in their original form such as cheques and the like shall not be retyped and clear photocopies on A4-size paper shall be provided instead. (d) The pages shall be numbered clearly and consecutively and every tenth line on each page shall be numbered and the pagination used in the court a quo shall be retained where possible. (e) Bulky records shall be divided into separate conveniently-sized volumes of approximately 100 pages each. The record shall be securely bound in book format to withstand constant use and shall be so bound that upon being used will lie open without manual or other restraint. (f) All records shall be securely bound in suitable covers disclosing the case number, names of the parties, the volume number and the numbers of the pages contained in that volume, the total number of volumes, the court a quo and the names of the attorneys of the parties. (g) The binding required by this rule shall be sufficiently secure to ensure the stability of the papers contained within the volume; and where the record consists of more than one volume, the number of each volume and the number of the pages contained in a volume shall appear on the upper third of the spine of the volume. (h) Where documents are lodged with the Registrar, and such documents are recorded on a computer disk, the party lodging the document shall where possible also make available to the Registrar a disk containing the file in which the document is contained, or transmit an electronic copy of the document concerned by e-mail in a format determined by the Registrar which is compatible with software that is used by the Court at the time of lodgement, to the Registrar at: [email protected]: Provided that the transmission of such copy shall not relieve the party concerned from the obligation under rule 1(3) to lodge the prescribed number of hard copies of the documents so lodged. (i) If a disk is made available to the Registrar the file will be copied and the disk will be returned to the party concerned. Where a disk or an electronic copy of a document other than a record is provided, the party need lodge only 13 copies of the document concerned with the Registrar. (3) If a record has been lodged in accordance with the provisions of paragraphs (b) and (c) of subrule (1), the Registrar shall cause a notice to be given to the parties to the appeal requiring— (a) the appellant to lodge with the Registrar written argument in support of the appeal within a period determined by the Chief Justice and specified in such notice; and (b) the respondent to lodge with the Registrar written argument in reply to the appellant’s argument by a specified date determined by the Chief Justice, which shall be subsequent to the date on which the appellant’s argument was served on the respondent. (4) The appellant may lodge with the Registrar written argument in answer to the respondent’s argument within 10 days from the date on which the respondent’s argument was served on the appellant. (5) The Chief Justice may decide whether the appeal shall be dealt with on the basis of written arguments only. (6) Subject to the provisions of subrule (5), the Chief Justice shall determine the date on which oral argument will be heard, and the Registrar shall within five days of such determination notify all parties to the appeal of the date of the hearing by registered post or facsimile.
What are the Steps in Summary:
Within 15 days of the Order you are appealing against, lodged you Application for leave to appeal [Rule 19(2)]
Within 10 days, the Respondent is to file its Notice to Oppose the appeal and the grounds for the opposition [Rule 19(4)(a)]
The Constitutional Court would then decide whether or not to grant the leave to Appeal [Rule 19(6)(a)]
If leave to appeal is granted, the appellant shall prepare and lodge the appeal record with the Registrar [Rule 20(1)(a)]
The Chief Justice may decide whether the appeal shall be dealt with based on written arguments only [Rule 20(5)]
The matter would be argued on the date provided by the Constitutional Court.
Best of luck with your appeal.

Posted on 11 February 2025 by Telelaw

What all separated parents should know before the holiday season. Use this legal advice to ensure that the holidays go by smoothly.
During the festive season, school is out and the holidays are here. This is a time of year when children get a break from the long school hours, early mornings, homework and exams. It is a welcomed relief to most parents and children. Parents no longer have to deal with homework, washing of school clothing and making sure their children arrive at school on time. Of course, there are other challenges. For example, the children would need to be entertained and be cared for during the day. Sometimes whilst the parents are at work.
Contact arrangements during school holidays
During the school holidays, contact arrangements of separated parents concerning their children would change. Children would usually be one full-half of the holidays with one parent, which half would alternate each year. The split usually takes place after Christmas. Some parents follow a week-on, and week-off arrangement. On a rare occasion, the parent continues with contact as they have during the school term. This may apply to parents who are working during the holidays. So most of the time, during a period in the holidays, one parent cares for the child; then the other can take a break from caring. If the mother is the primary caregiver, she can use this time to go on a mini-vacation or catch up on her reading or go out on an outing with her friend. Therefore holiday time could be very beneficial to the child and parents concerned. Sometimes one parent wants to go on a holiday overseas with the child to visit a relative, but consent is not forthcoming from the other parent. And other times, a parent wants to have more contact than they usually exercise, which would infringe the other party’s contact rights. On the flip side, a parent may not be available to care for the child during the holidays due to work, or other reasons. These and other issues can arise during the school holidays. This article will try to address some of these scenarios, with some advice, and advise on when to approach the court should they not be able to resolve them. Now let us begin.

Parenting arrangements for separated parents during the holidays

Parenting arrangements for separated parents can come in various forms. It may either be in the form of a mediated parenting plan, informal documented arrangement, or an order of Court. In other cases, the parties have some type of verbal agreement which they follow and confirm via email or text messages. Some parents use the children as the go-between to arrange holiday contact. Should the parents adhere to the terms of the agreement; no problems would arise during the holidays. A well deserved holiday would be on the horizon. However, our experiences are that during the end of the year holiday, problems are more likely to arise than at any other time of the year. This would be so notwithstanding there is a binding legal agreement in place. This article will attempt to highlight those problems and also provide you with workable solutions to avoid them. Let us start with the usual holiday contact.

Holiday contact – All families are different

All families are different. The type of contact a parent would have to a child during the holidays would vary from family to family. This would depend on the various family dynamics. For example, the age of the children, and whether or not the parents are working during the school holidays. Another factor is whether or not they live close to each other. Whatever the Dynamics, the parenting arrangement should be workable and sensible.

Equal sharing of long and short school holidays

The usual parenting agreement would be for the parents to share school holidays equally. Of course, not all parents have the privilege of not having to work during school holidays. It is therefore important that prior to the holidays, parents come to a workable agreement on how contact should be exercised during that period. This is not only in the child’s best interest but in the interests of the parents concerned. Parents will not want to spend their entire holiday fighting over contact. They should use this time to spend quality time with the children and also to enjoy the holiday season.

What all separated parents should do before the holidays

A few months before the holidays, the parents should discuss contact for that period. What worked a few years ago when the children were young might not be applicable today. For example, now the children have to attend school camp or attend to additional tuition. Furthermore, they may want to go away to a sporting event for the holidays. Notwithstanding the various dynamics, the parents have to come to an agreement regarding how contact should be exercised during school holidays way in advance. Obviously, during the school term, their schedule is set.

What to do if an agreement cannot be reached

Should the parents not be able to come to an agreement regarding contact during the school holidays, it is important for them to have a look at the parenting plan or Order of court in this regard. Usually, the parenting plan would deal with facilitation or mediation, as well as the Court Order. If it does not, it is strongly advised that you approach a mediator to assist in resolving the care and contact issues for the holidays. If that is not possible, then read on to learn more regarding some possible solutions.

When to approach the Court regarding holiday contact?

The last resort for parents who cannot agree on contact during the holidays is for them to approach the court. Even if there is a court order in place, but it has since become impractical, one would expect parents to act reasonably. However, if one parent is adamant that the court order should be followed, then approaching the court is the route to follow. But before doing so, it may be wise to see a legal practitioner for legal advice on the specific issue. An attorney may also send the other parent a letter. This may resolve matters. Let us look at a few examples of when approaching the court would be necessary.

Refusal of Contact when there is no order in place

If there is no court order in place, and the primary caregiver refuses you contact to your child, then first try to mediate the matter. Trying to enter into a parenting plan would be a wise idea. If that is not possible, or fails, then approaching the court would be the next step to follow. A family law attorney would be able to assist you.

There is a Court Order in place

Let’s say there is a contact court order in place. However, it is outdated and not workable. This is so because the children are now teenagers, and contact should be no longer every second day, but for a week at a time. This is not only practical but also what the children want. If there is a parenting plan in place, that allows for the mediation of such a matter, then mediation should be followed. If not, then a variation of the court order would be warranted. The court would always look at what is best for the children, and not what the parents want.

Refusal to give consent to take the minor child on holiday overseas

Both parents who hold parental responsibilities and rights of guardianship should consent to the minor child leaving South Africa for visits overseas. However, it often happens that custody agreements or Court orders don’t deal with this scenario. When the party separated they did not foresee the possibility of the child wanting to leave the country with the other parent. Nonetheless, this scenario is a reality. The parties, therefore, have to be sensible and come to an amicable agreement regarding it. If they cannot come to an agreement regarding the minor child leaving the country with the other parent then, unfortunately, the court should be approached.

Refusal to give consent for the minor child to obtain a passport

When the children were young at the time of divorce or separation, the parents may not have seen the necessity for them to obtain a passport. However, things changed. Now that their children are teenagers they may want to travel overseas with a parent. Should this occur they would have to obtain a passport. Here too the law says that both parents should consent for the application of a passport if they are both guardians. Therefore, if one parent does not consent then the High Court should be approached. This would be very unfortunate seeing that High Court litigation is very expensive. The parties would have to appoint a legal practitioner to make the application to the court and oppose it if necessary. This would not be in the minor child’s best interest. Nonetheless, the court will decide what is best for the minor child concerned.

Child maintenance during the festive season

Lastly, we would like to touch on the issue regarding child maintenance during the festive season. During holiday times, children become more expensive. They eat more, want to go out more, and at the same time use more water and electricity at home. Unfortunately, these added expenses can burden a parent caring for children during the holiday season. We, therefore, advise parents to timeously discuss these issues and see whether or not they can come to an agreement regarding the expenses of the child during the holidays. Unfortunately, if a parent does not want to contribute more than he or she is currently contributing; the other parent would have to approach the maintenance court. The sad reality of this is that the maintenance court can take many months to finalize such an issue. We, therefore, implore on all separated parents to be cognizant of this fact and try to be more generous regarding child maintenance during the holiday season.

Final words of advice two parents who are separated during the festive season

As outlined above, it is important that parents timelessly come to an agreement regarding contact in relation to a minor child during the festive season. If they do not do that, many problems can arise in the future. Of them could be limited or no contact with a minor child. It could also mean that a court should be approached should one parent not decide to provide contact to the minor child. This can all be avoided should the parties work together in what is best for the minor child concerned. If however, the parents cannot come to an agreement regarding contact, consent to travel abroad, or apply for a passport for a minor child; then the parents would have to resolve this matter in the High Court. This is best to be avoided at all costs.

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Posted on 11 February 2025 by Telelaw