How to get urgent Access to your Children without the services of a Lawyer (Attorney or Advocate)
Are you a father or mother of a child and the other parent refuses you access/contact to that child? If that is the case, you have a right to relief from the Court for Urgent Access.
A couple would bring a child into this world. Whilst the relationship is ongoing, they can see eye to eye on what is best for the child and both parties form a productive part of the child’s life. Even if the couple is not living together, the father would see the child regularly and bond with the child as is needed. However, once the relationship has severed, it often happens that the parties cannot see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. Should the mother refuse access or prescribe access to the child, which is not in the child’s best interest, the father, in this case, would have grounds to urgently approach the Court for relief.
Court procedure is very complicated. It is therefore strongly advised that you approach an attorney with knowledge and experience with these urgent applications. Furthermore, the attorney should have an advocate at hand to move the Application with or without opposition at Court. However, if you wish to do it yourself, read further should you wish to make the Application in the High Court.
The Procedure
Your application is urgent and therefore it is done on affidavit and not orally in Court. You may, however, be called to give oral evidence if the Judge so wishes. This is to clarify certain issues. However, this can mostly be avoided if your papers are properly drafted.
You should firstly draft a document called a Notice of Motion and a founding affidavit. I shall explain these documents next. Although reference below may be made to an attorney or advocate, you may attend to the process yourself. Lastly, for the sake of simplicity, the term contact and access is used, as opposed to care and contact.
Notice of Motion
In this document, you state exactly what you want the Judge to grant you. It is similar to the prayers in a summons. Of course, you want the Judge to grant you urgent access to your child. You are making the application urgently and sidestepping some rules of Court regarding time periods and procedure. The first thing you should, therefore, ask the Court is to condone non-compliance with its Rules. You will then ask the Court what relief you want, usually in the form of an interim order to be finalised later. Usually, you will ask for a rule nisi.
An example of the prayers in an urgent access application in the High Court are as follows:
- Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
- That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2017 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
- That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;
This document is signed by your attorney, or by you if, you are acting in person.
Founding Affidavit
In your Founding Affidavit, you provide relevant information under oath. Here you would provide details of you, the mother and the child. You would also need to provide information on a few or more of the following matters:
- Background information about your relationship with the mother of the child;
- Past access to the child;
- Past involvement in the child’s life;
- When access to the child seized/lessened and the circumstances surrounding it;
- Past maintenance or attempts to maintain the child;
- Why the application is urgent and substantive redress in due course would not be afforded to you; and
- Any other relevant information.
Issue and Service of the Application
Once the Notice of Motion and Founding Affidavit is in order, your attorney would make the necessary copies. Thereafter he would have the application issued at Court. A case number would be provided. If possible, you would have the application served on the mother of the child timeously. The Office of the Family Advocate should also be served. Here you may make use of the office of the Sheriff or your attorney would serve the papers on the mother.
Opposition
If the mother of the child opposes the relief sort after being served with the Application, she should file an opposing affidavit to which you would have to reply. The parties would then have to argue the matter before the Judge.
Urgent Hearing at the High Court
If your matter has been set down on the Motion Court Roll, the Judge would have already read over the papers filed. You would then wait for your matter to be called up. Should your matter is to be heard before the Urgent Judge on duty that day, you or your Advocate would have to take the file to the Judge beforehand to read. If the mother or her Advocate is present at Court, and the parties cannot settle the matter, they would then have to argue the matter before the Judge. If, however, the mother after having been duly served does not appear at court, then the process is a bit faster.
After the judge decided on the matter, the following might happen:
- The Judge would grant the urgent access requested;
- Grant you urgent access but not on the terms as requested;
- Refuse to grant you any relief without a family advocate report;
- Dismiss your application for lack of merits and/or urgency.
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Im a Recovering Drug Addict
Its been 3 years without seeing my child,i went through alot in my life, being addicted to drugs and i battled for many years before our daughter was born but i finally got help and got freedom from being a slave to the disease. Im now 1 year and two months clean. Every day i think of my daughter and i seek immediate help get contact with her, her mother refuses to make contact or reply to my messages.I need help and advice on how i can be a part of my childs life. Please help me
Hi
I have 2 boys, 7 and 2 years old. I have been paying roughly 9k per month in maintenance for my boys. I find the system fails us as fathers who want to be a part of our children’s lives, but the deciding factor is ultimately the mother of our children. I contribute to their financial well-being and I cannot help but feel like fathers who do care have to own 100% of the financial responsibility but have 0% rights to access and contact. I am now in a relationship and a happy one and on the verge of getting married since this, I have not been able to access or see my boys, and the demands for financial support keep increasing month on month. Whilst I have ZERO issues supporting my children, I do find it immensely frustrating that their rights to access to me are restricted. Yet, if I restrict the payment of their maintenance, I am the one liable to go to prison. Despite the new “improvements” to the law, the end results remain the same.
Good day
I am currently going through a DIVORCE. I moved out of the house cause of the well being of my children as the husband is mentally physically and verbally abusive. He is refusing and withholding children from me as well as to have contact with them in 5 months.. It was referred to family advocate which we will see now thisontn. What I want to know is can I get a court order so he can be forced so that I can see my kids without supervised visitation he is insisting on. He told his lawyers a bunch of lies which isn’t true. How can I get to see my kids immediately
Good day
You can make a rule 43 Application in the High Cour of a rule 58 Application in the magistrates court where the divorce is pending for access to your children.
Good day,
Where do I start if I feel that my children’s father is denying me telephonic contact whilst they visit him? He just doesn’t answer the phone. Kids ages are 4 and 9 years old.
We have a parenting plan which is mostly standard. In the parenting plan it stipulates that there will be telephonic contact with respect to hours.
Good day …I’m a mother of 3 kids who is the sole supporter since birth of all 3 kids my eldest son who has hdhd is in the care of his father and grandparents hense I was working and they offered to help out with my son for the time being we had agreed verbally on this now I’m off from work and I want my son back home as I can see to him myself and the father use to share weekends however the other 2 kids had resided with still and I had a helper to watch over them now the grandmother is refusing to allow my son to come to me for no apprent reason I than found my child in the street the net day unattended to where by he was with the grandfather who was consuming alcohol at his son’s house I than took my child home and his grandmother had went to the police saying she has a court order I violated but I have not been notified about that order nor was I served on it now that I had not returned my son back to them she has threatened to have me locked up how is that possible on what grounds is that possible what should I do ? Where to I got to take this matter up my son has told me she had taken him to a judge and had told him to say ill things about me and that I’m abusing him and if he did not say that he won’t be allowed to set foot in her house ever again he loves her but she is posioning him against me and manipulating my child she is only over my 1 son yet his got siblings that they don’t even worry about and she has now done this as I’ve decided to take up my kids father for mantainence now that his got a job
I need help with my child she was taken away from me and I can’t get help
Good day
Feel free to set up an urgent consultation using the link http://www.ourlawyer.co.za/advice
Good day my son has a 6 month old baby. Currently he sees the baby when he needs to without issues. The child comes to my house to visit.few hours maybe once a week or twice a month. My son is not employed to I have been supporting the child.the mother is going to Rustenburg bit he doesn’t trust her and what’s to see his child every second weekend what can he do in his case
Good day
They need to draw up a parenting plan. However regarding the Rustenburg visit, if he believes it is not in the child’s best interests, he needs to approach the court if the mother does not agree.
Good day my son has a 6 month old baby. Currently he sees the baby when he needs to without issues. The child comes to my house to visit.few hours maybe once a week or twice a month. My son is not employed to I have been supporting the child.the mother is going to Rustenburg bit he doesn’t trust her and what’s to see his child every second qeek3nd what can he do in his case
My partner currently pays maintenance into a bank account for his son and also covers creche fees. There is no court order for maintenance or parenting plan in place. Everytime we fetch the child, the mother wants more money and threatens to deny access if he doesn’t give her more money. The mother has always been unemployed and receives SASSA for the child. What are the next steps?
We suggest you approach the Children’s Court for a parenting plan.
We had agreement that I would have my daughter aged 4 every second weekend for 5 days and that I pay nursery and medical aid , I had missed my weekend with my daughter due to travels. Now being threatened to prove my travels or I won’t see my daughter. I relecant to pay the fees and keep my side of the bargain if she not allowing me to see my daughter.
It would be best you and the mother agree on a parenting to formalise your contact arrangments.
Hi
I have child court Date site on the 16 November. The mother of my child is refusing me to have any contact with my daughter. What I’m I able to do in the interim as she is leaving my child alone with her Father. Which is an alcoholic.
Good day
We advise you to bring this to the attention of the Childrens’ Court to expedite the matter. Otherwise, an urgent High Court Application is an option.
What is the procedure to draft a letter granting me access to talk to my son (8) I am out of the country due to work and now the dad is denying me access to my child telephonically
Good day
Make use of the link http://www.ourlawyer.co.za/advice. A consultation would be arranged with an attorney.
Hi Advice lawyers
Please advise the procedure of getting a non-compliance of maintenance during Covid-19, Urgent application as I have been to court three times and get told to return two days later , today I was by the maintenance officer that I will only be able to submit the civil application of non-compliance in two weeks time and was told the same thing that children court would not issue a urgent application for non-compliance. I have done and drafted all the document from described templates. Where else could I go for this other than high court? I am the primary caregiver and will impact on the children if the maintenance and have just cause for the urgent my son has an illness that requires special help from specialists.
My husband supports his child every month and buys clothes for different seasons. He is however denied access to his child. What can we do besides going to court
You can approach an attorney to send her a letter. But if she does not agree, you would have to go to court. You may every try medication by approaching a family mediator in your area.
My husband was granted interim access to his son unsupervised to pick up his son saturdays from 9am till 6pm not the mom refuses to allow unsupervised access…what can he do?
He Should Approach the Court and Apply for Contempt.
My challenge is that the family Advocate reward a child to the mother never stayed with a child and yet the father wanted to raise his child stay him, child stays with his grandmother to the mother side.as both stay in pretoria.
If you are unhappy with family advocate’s decision, you can still take it to court and challenge it.
Hi can a affidvit count in court if the mother stated that the chrilderns will stay at father and not by her wpuld that be a bonus for the father in court
The Court would decide what is best for the children at the time of the application. The affidavit may be considered, but it will only follow it if it is best for them.