How do I get full custody over my child? Cape Town South Africa

How do I get full custody over my child?

Assistance on how to obtain contact, custody or visitation to your child

Parents have an inherent right and duty to form part of their child’s lives. Here we refer to parental rights and responsibilities.  However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interests. More often than not, when parents are divorced, separated, or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children.

These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights.

What are Parental Responsibilities and rights to a child?

The terms used to refer to the rights and responsibilities of parents to their children are referred to as “parental responsibilities and rights”. Parental responsibilities and rights are defined in the Children’s Act.

Section 18 of the Children’s Act of 38 2005 (the Children’s Act) states the following:
18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a
child, include the responsibility and the right-
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.

When to enter into a Parenting Plans?

Not going into too much detail, all parents of children should by default have certain parental responsibilities and rights to their children. It often happens that parents who are co-holders of parental responsibilities and rights, are unable to agree on how their rights should be exercised. Should that happen, then according to section 33 and 34 of the Children’s Act, they should try to agree on a parenting plan.

Basically, they should see an expert like a social worker, or psychiatrist to assist them in resolving the issues they have. As long as the person is suitably qualified, they may make use of their services. They may even approach the Office of the Family Advocate. Should all go well, a parenting plan would be drafted and entered into. This parenting plan may either be registered with the Office of the Family Advocate, or made an Order of Court.

When to approach the Child Custody Court?

If parents cannot agree on a parenting plan, then a court may have to be approached. Usually they would approach the High Court, or the Children’s Court in their area of residence. In South Africa, one does not have to make use of legal representation. In other words, you may represent yourself in Court. Many times, you do not have a choice as you cannot afford legal representation.

What is the Children’s Court?

Each magisterial area has a children’s court dealing with Children’s matters. The Children’s Court would be best suited for parents who would prefer to conduct their own case. When you approach the children’s court, they provide you with forms to fill in. They would basically assist you with the process. They will issue a summons / notice to the other parent to appear at Court. Many attorneys also make use of the Children’s Court, as opposed to the High Court, when enforcing their client’s parental responsibilities and rights.

What is the High Court?

Each province has a High Court. The Court procedure in the High Court is much more complicated than that of the Children’s Court. If you can afford an attorney,  and an advocate, they the High Court is another option. Specific documentation needs to be drafted. One is called a Notice of Motion, and the other, a founding Affidavit.

What are the serious parental issues the Court looks at?

There are various pertinent issues the court looks at when deciding how contact or visitation should be exercised. Each case is unique. In this article, we will list factors that may limit your exercising of your parental right of contact or care. They are:

Child Abuse

Unfit parenting

  •  Not all parents are fit enough to care for a child primarily. This is especially so if there is a history of irresponsible parenting.

Living Conditions

  • The law in no way discriminates against parents based on their living conditions. However, it is a factor to consider in Child Custody Cases.

Psychiatric disorders

  • Psychiatric disorders in many cases plays a role in deciding how care and contact should be exercised. If the condition is bad, a court would have to factor it in when making its decision.

How does the Court come to its decision?

The Court (Children’s Court as well as the High Court) would listen to both parents, and any expert appointment. Usually the expert would provide a report. Many times, they are the office of the family advocate or a state appointed social worker. After looking at, and hearing everything, the court would make a decision based on what is in the child’s best interest.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

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2 thoughts on “How do I get full custody over my child? Cape Town South Africa”

  1. I have been living with my gf for a few years. We have a son of 4. Lately she has been going out with friends after work and the past few weeks has been comming home at around 3 “and 4 in the morning and once just after 6 am after she told me she was working a function at a beer fest that ended 10pm the previous night. When I asked her about it she told me they finished late and just this morning when I confronted her she said they went to get something to eat the thing that bothers me most is that meal took 8 hours She has never given me reasons as to why she comes home late except for last night saying it was a colleagues farewell but on a Sunday places close at midnight. I suspect she is cheating I also have found marijuana in her draw pack in a tin contains that at first she denied. I cant live like this anymore and I will not allow this to go on around my son. I read her watsapp messages one time and I never had much time to read the messages but there where a few messages that I found disturbing. Ok ne about come over and have a line. Her so called work times are ridiculous and does not correspond with her previous work times. She attacks me one night when I was trying to play with her she grabbed my finger and twisted it and I also done the same back to her. For two days she wrapped her hand in a bandage and after that she was fine. Even went as far as carrying a plate if food with the same hand. Apparently she opened a case against me. Well I have not been approached by any social worker policeman or any government official months later she is always undermining my authority with my son. When I scold him or when I tell him to behave or go sleep and so on. She accuses me of abusing him with false accusations that my family members tell her. I have requested that we take him to a counsellor or child physiologist for evaluation by once again its all hit air. I love my son and his mom but I cant allow this to continue like this. I want to get us both away from her negligent new lifestyle and her psychological games. Please help! Sincerely Mark Burger

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