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.