I feel that the High Court granted an unfair child custody order. Is there anything I can do to challenge the Court’s decision?

Appeal Child Custody High Court or Magistrates' Court Order

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.

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