Divorce Attorney Cape Town

Liability of divorced or separated parents for fees at fee-paying public school.


The South African Schools Act 84 of 1996 (the Act) provides that a parent is liable to pay school fees at fee-paying public schools unless or to the extent that he or she has been exempted from payment.

One of the requirements for exemption from payment of fees is that the applicant must provide the ‘combined annual gross income of parents’.

In MS v Head of Department, Western Cape Education Department and Others 2017 (4) SA 465 (WCC); [2016] 4 All SA 578 (WCC) the applicant MS, a divorced mother of the learner at a fee-paying public school, was refused exemption by the school governing body (SGB) of the local school as her application was incomplete in that it did not include the financial position of her former husband that she had since divorced. He was very uncooperative and did not provide his financial position. The first respondent, the Head of the Department of Education in the Western Cape, rejected the applicant’s appeal against the decision of the SGB.

Contending that her liability to pay school fees was joint rather than joint and several, the applicant approached the court for an order reviewing and setting aside the first respondent’s decision regarding her appeal. In other words, her stance was that her application for exemption from payment of fees should be determined on the basis of her financial position alone concerning her share of liability for fees. That meant that for the balance the SGB would have to deal with her divorced husband separately.

Le Grange J granted with costs an order reviewing and setting aside the decision of the first respondent. The matter was remitted to the first respondent for determination of the exemption as the court itself was not a better place to do so. Moreover, doing so would encroach on the doctrine of separation of power between the judiciary and the executive.

It was held that on a proper construction of the provisions of s 40(1) of the Act, liability of a parent to pay school fees had to be regarded as joint and not joint and several. That was reference to the liability of the parent to the school in terms of s 40(1), not the liability for school fees between parents, which could be affected by private arrangement, as was the case in the present matter. Given that back in 2010 both parents undertook to remain involved in all aspects of the learner’s life, including her schooling and general welfare, the suggestion by the applicant that she was offended by the respondents to regard the divorced husband as part of her family and to insist that she requested financial information from him in order to complete the application forms for the school fees was unjustified. In fact, she accepted and agreed that she was under a legal obligation to forward correspondence relating to the learner to the divorced husband. Moreover, both parents accepted to remain co-holders of parental responsibilities and rights in terms of the Children’s Act 38 of 2005.

Therefore, the relief sought by the applicant for a declaration to the effect that by requesting her to also submit financial information of her divorced husband, the SGB infringed her right to human dignity by degrading and humiliating her, as alleged, was unsustainable and legally untenable.

 

The Marriage Rate Continues to Decline.


Living-Together

Will Valentine’s Day, always a popular moment for popping the question, see less marriage proposals this year than in past?

Information provided by Statistics South Africa in 2014 shows that the highest number of marriages was recorded in 2008 and the lowest number in 2012 which represents a decrease of more than 10% from those marriages recorded in 2008.

The age-old message about marriage that has been communicated by parents that “two are stronger than one” is now brushing up against a 21st-century reality: The number of married households in most countries including South Africa has fallen. Some researchers calls it “The Marriage Crisis”.  Today’s young adults in the US are on track to have the lowest rates of marriage by age 40 compared to any previous generation. If the current pace continues, more than 30% of millennial women will remain unmarried by age 40.

There are several reasons behind the declining marriage rate. The importance of marriage has been fading for years. More couples are living together without getting married, and some are raising families.

Also, marriage used to be the starting point for young adults. They got hitched early and built a life together. Now, many people feel they have to be more established, especially financially, before they walk down the aisle.

In 2013, the economist David H Author found that, “Sharp declines in the earning power of non-college males combined with the economic self-sufficiency of women rising educational attainment, falling gender gap and greater female control over fertility choices have reduced the economic value of marriage for women.”

Sweden has one of the lowest rates of marriage in the world and only 20% of the population bother to marry. In France and Britain it’s about a third. While marriage is in decline, unmarried cohabitation is on the rise.

U.Va. psychology professor Robert Emery says that, in the past, people thought of marriage as “more of a business-like relationship.” Women often received financial support from their husbands and women often provided household and child-rearing labour. Marriage rates fell and divorce rates rose when people started thinking less with their wallets and more with their hearts.

In the US the number of married households fell to 50.5% in 2012 from a high of about 72% in 1960. Among the less well educated, the number of married households has fallen even more. Research indicates that those who find themselves already lower on the socioeconomic ladder may be less likely to ever marry.

The United States has spent approximately one billion dollars since 2006 trying to educate low income Americans of the value of marriage with the goal of minimising divorce and single parent families. President Obama wrote in “The Audacity of Hope” that expanding such marriage education services to low income couples “should be something everybody can agree on.”

Researchers at UCLA however found that the poor not only value marriage just as much as those with more income, they actually have a better grip of the values needed to make a marriage work than wealthier people. Compared to the affluent, poor people “were more focused on the role of a good job, and an adequate income, and having some savings as the important factors in having a successful marriage,” the study’s lead author, social psychologist Benjamin Karney said.

Feminists have claimed that they, have the answer to Freud’s question about “What do women really want?” According to them, women’s utmost desire is to be equal to men and independent of them. Feminists created the myth that men and women are interchangeable and, except for donating sperm, women can be totally independent of men. However data in the US shows that by the time women reach their 30’s, about 70%of them are married and in marriage data we can certainly see the pull between a particular powerful set of values contesting with strong biological needs and the desire for equality struggle with the need for connection and relationship.

One should never underestimate marriage’s economic benefits. In a recent study in the US it was found that children being raised by married parents is generally connected to better economic wellbeing for young adults. So is being married as an adult and that growing up with both parents’ increases your odds of becoming highly educated, which in turn leads to higher odds of being married as an adult.

“Divorce causes a decrease in wealth that is larger than just splitting a couple’s assets in half,” said Jay Zagorsky, an Ohio State University economist. “If you really want to increase your wealth, get married and stay married.” “Marriage carries a sense of meaning, purpose, direction and stability that tends to benefit adults and particularly children. People who get married have an hope of sexual fidelity, and that fidelity tends to engender a sense of trust and security.

Latest marriage statistics in South Africa

Generally, the warmer months (beginning from September and peaking in December) are the most popular months for marriages. The results also show that marriages tends to peak in either March or April depending on the month of Easter holidays for that particular year. In 2012, the highest number of marriages took place in December. July recorded the lowest number of marriages. The results further indicate that, in 2012, the highest number of all marriages was registered in Gauteng (25,0%) and the lowest in Northern Cape (3,1%).

North West (76,1%) had the highest proportion of its marriages conducted by civil marriage officers whereas Western Cape recorded the highest proportion (44,2%) of marriages conducted by religious marriage officers.

A majority of the marriages in 2012 for both bridegrooms and brides were first-time marriages. For bridegrooms, there were (82,9%) bachelors, (3,3%) divorcees and (1,3%) widowers. For the brides, (87,4%) were spinsters whilst (2,2%) were divorcees and (1,0%) were widows. Provincial distribution shows that all provinces had the highest proportion of both bridegrooms and brides marrying for the first time, particularly brides in KwaZulu-Natal and Limpopo where 90,2% and 90,8% respectively were spinsters at the time of marriage

Irrespective of their marital status, men generally married women who had never been married (spinsters). Thus, (94,2%) spinsters, (1,0%) divorcees and (0,9%) widows were married by bachelors. In addition, irrespective of the fact that more divorcees and widowers married spinsters, the proportion of male divorcees who married female divorcees (16,2%) was higher than the proportion that married widows (1,2%). Similarly, the proportion of widowers who married widows (15,0%) was higher than the proportion that married female divorcees (1,5%).

The average ages of first-time brides remained at 29 years, while for bridegrooms the average age was 33 years. The average ages for divorcees for male were generally at 52 years. In comparison, the average age of female divorcees increased to 47 years. Despite the fact that men generally marry younger women, data in indicate that (14,8%) bridegrooms were younger than their brides whilst  (7,6%) were of the same age as their brides.

Source: http://voices.news24.com/bertus-preller/2015/02/marriage-rate-decline/

Bertus Preller

Divorce and Family Law Lawyer

Bertus Preller & Associates Inc., Cape Town

Website: http://www.divorcelaws.co.za and http://www.divorceattorney.co.za

Twitter: @bertuspreller

Facebook: http://www.facebook.com/divorceattorneys

Tel: 021 422 2461

Consent from both Parents needed regarding a change of schools


The case of Nel v Nel [2011] ZAWCHC 113 dealt with the fact that both parents need to consult each other when a child’s school is being changed. In this matter the mother decided to put the children in a new school without consulting the father.

The Applicant and the Respondent was embroiled in divorce proceedings. The parties had 2 children ages 3 and 8 years of age. In terms of a Court Order issued by Desai J, in the Cape High Court on 23 June 2009, the children were primarily resident with the Respondent subject to reasonable contact being afforded to the Applicant as set out in the order.

The eldest child was a learner at Kenridge Primary school in Bellville, after he attended the pre-school at the same school in 2007, Grade R in 2008 and or 2009 and 2010 he attended Grades 1 and Grade 2 respectively. The eldest child was happy at the school and did not have any problems.

The youngest child attended Pixie Daycare in the same area, and would have attended Fledglings Pre-Primary School, adjacent to Kenridge Primary School in 2011.

When the new school year commenced, it came to the notice of the Applicant that the Respondent had without informing or consulting the Applicant, removed the eldest child from Kenridge Primary School and did not enroll the youngest child as agreed with the Applicant at Fledglings Pre-Primary School in Kenridge, Bellville. This was common cause between the parties.

Section 31(1)(a), read with Section 31(b) (iv) of the Children’s Act 38 of 2005 states:

“Major decisions involving child – (1)(a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(b)    a decision referred to in paragraph (a) is any decision –

(i)    …………………………

(ii)   …………………………

(iii)    ……………………………….

(iv) which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.”

The Respondent enrolled the children at Islamia College in Rondebosch East. It was also common cause that the Respondent did not advance any reason why she did not inform the Applicant thereof, at that time when this happened.

In later correspondence from her attorneys it emerged that to ease her travelling burden, she took this step. In her Answering Affidavit, she only stated that the children were granted bursaries to attend the new school.

The crisp question was whether, notwithstanding the parental rights of the Applicant, whether the fact that they were removed from one schooling environment to another, was in the best interests of the children.

The Respondent in her papers averred that by moving the children back to their previous schools would not be in their best interests.

It was clear that the actions and conduct of the Respondent was in contravention of the law, and a court will not lightly condone such conduct on the part of a parent, where it is clearly not justified, under the guise that it is in the best interests of the children.

Apart from stating boldly, that by moving the children back to their previous school environment, would not be in their best interest, the Respondent did not give substantial reasons why she believed that it was in their best interests to remove them from Kenridge Primary School or to have the younger child enrolled at Fledgings Pre-Primary School as agreed to with the Applicant.

Both children were at a young age, the older child had been in that school environment since 2007 and the younger child since 2009.

There was clear evidence from the Applicant and the school that the children were happy and content with this environment. The Respondent disturbed the status quo, the onus was on her to show why it would be in the best interests of the children to disturb this and she clearly did not.

There was no objective evidence to suggest that the removal of the children from the one schooling environment to the one the Respondent chose was in their best interests so as to disregard the rights of the Applicant to have been properly informed or consulted about the fact that the Respondent had removed the children from one schooling environment to another.

The court had to deal with the question whether it would have been in the best interests to move the children back to their previous schooling environment.

The court was of the view that having regard to the short time the children had spent at Islamia College and also it being a whole new environment compared to the longer time they had spent at Kenridge which was a known and stable environment to them, there would be a greater harm if they were not moved back to their previous schooling environment.

The court was of the view, that it was dealing with young vulnerable children, and the fact that the school year had basically reached one month, the harm would have been greater to the children had this application not been heard on an urgent basis

The Applicant therefore made out a case why the application should have been heard in terms of Rule 6(12) of the Uniform Rules of Court.

After consideration of the papers and after hearing Counsel for both parties, the following order was made:

The Respondent was ordered to immediately return to and/or re-enroll the minor children B N, born on 7 June 2002 and S N, born on 5 September 2006 at Kenridge Primary School and Fledgings, the pre-school facility at Kenridge respectively by no later than Friday the 18th  of February 2011.

The Family Advocate was directed to urgently investigate what school and aftercare arrangements would be in the best interests of the children, pending the finalization of the parties’ divorce.

Relocation of parents with children, you need the consent of the other parent


Relocation of parents to another province, town or country

Relocation disputes between parents are frequent in our courts. Relocation can involve relocation to another town, province or country.  Where both parents have guardianship it necessarily follows that consent from both parents will be needed when one parent decide to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation.  The closest that the Children’s Act gets to relocation is section 45 that deals with the jurisdiction of the court in matters where a child is removed from the Republic of South Africa.

Typically a relocation dispute will arise where one parent, normally the parent of primary residence and with whom the child usually resides decides to leave the country or the province to live elsewhere. It then usually follows that the parent who is left behind refuses or disagrees to give consent that the child leaves with the other parent. Once the other parent disagrees or refuses to give consent, the primary caregiver can approach the High Court for an order dispensing with the other parent’s consent and remove the child to another country or province. It must be noted that it is not a given that the court will automatically give its consent.  The reason therefore is that the Children’s Act does not set criteria and our courts have to consider various facts and case law before it will grant an order to the other parent to move the child.

If one has regards to previous case law it is clear that our courts will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide and this will be part of the valuation whether the move will be in the child’s best interests. If the court does find that the plan is reasonable then obviously the court will allow the parent to move the child.  It is evident to note that our courts have taken a pragmatic approach and although the move may be to the detriment of the other parent who will have less contact with the child, life must go on.  Another issue that comes into play is the fact that our courts have to respect the freedom of movement of family life of relocating parents.

The following passage from the case F v F 2006 (3) SA 42 (CA) is of importance:

It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives in a manner that each chooses alone

 A court must however also consider the impact that the relocation will have on the other parent who will be left behind. In looking at what is in the best interests of the child, a court should also look at whether relocation will be compatible with the child’s welfare. In F v F as sited above the court stressed the importance that it had to evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. In this matter the court rejected the mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and were outweighed by the child’s need not to be separated from either parent.

In the case of MK v RK case number 17189/08 in the South Gauteng High Court, the court followed a similar approach as in F v F. In this matter the child was living with the father. Here the court found that the father was thwarting attempts by the mother to rebuild her relationship with her daughter. The issues between the parties were acrimonious and the father alleged that the mother sexually abused the daughter years ago, based on these and various other factors, the court awarded custody to the father at the time the parties divorced and the child lived for several years with her father. The father then sought to relocate to Israel, although the mother initially gave her consent because she believed that she would be allowed contact with her child. She did however later withdraw her consent when she realised that this will never materialise. The court refused the relocation based on the fact that the father could not provide sufficient information when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also placed emphasis on the fact that it was important for the child to re-establish her relationship with her mother. What was also interesting in this case was that the court criticized the experts (psychologists) who recommended the relocation based on the fact that they did not considered all the facts and moreover that they did not considered all the evidence in making such far-reaching recommendations.

Another interesting case was that of HG v CG 2010 (3) SA 352 (ECP). This matter concerned four children whose parents were divorced. The eldest was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys and a girl. In terms of the settlement agreement the parents were awarded joint custody. The intention being that the children would spend an equal amount of time with each parent and the children were spending alternate weeks with each parent.

Three years after the divorce the wife approached the High Court by way of an urgent application for variation of the custody order. In the application she sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai to live with a new man whom she planned to marry.

Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by her held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. The mother’s application was dismissed and the court did not consent to the relocation as it found that it was not in the best interests of the children.

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Parental Alienation, are you guilty?


There are thousands of divorces every year in South Africa…

A sad statistic and topic that is all by itself. But these numbers don’t even come close to reflecting the pain and heartache that divorce brings with it. Most of the time, both spouses feel hurt, anger and possibly even betrayal. If not by their spouse, then by the hopes, dreams and commitment that they once shared.

If you have ever “survived” a divorce you know exactly what I mean. If you haven’t experienced one then you are most fortunate. The emotions, demands and the decisions that need to be addressed while going through and after a divorce are staggering in scope and importance. It’s a wonder any of us survive.

My heart goes out to anyone that has ever had to rebuild a shattered life and dreams because of divorce. The difficult scenario that I’ve just shared describes a husband and wife navigating through this life changing event. I think we would all agree, when children are introduced into the equation the stakes go up considerably for everyone involved. That’s where the potential for “Parental Alienation” rears its ugly head.

In fact, Parental Alienation is so ugly that very few that very few people even want to admit its existence. They would much rather debate whether it should be classified as a “syndrome” or not. Or assign self-serving motives to anyone who dares to shed light on its deadly impact on children.

No matter what you “label” Parental Alienation, it comes down to this. Any parent that deliberately and maliciously attacks their child’s other parent, and does everything they can to destroy the relationship their children have with that parent is abusing that child.

Now I’m not talking about occasionally venting about your ex-spouse (although even that is not healthy for your children), I’m talking about a wilful desire to use your children to “hurt, control or attack” your ex-spouse by turning the children against him or her.

Most of the time these attacks are hidden behind the guise of “protecting” the children from their “father or mother. In reality there are very few situations (although there are some) where the children are in need of protection at all.

What about the children? Do they deserve to be caught up in a deadly game of hate and manipulation just to make one of their parents feel better about themselves or meet their needs? What about our God-given (or at the very least our humane) responsibility for their welfare?

The sad fact is that the same parents that would probably fight to the death to shelter their children from harm end up being a perpetrator that inflicts some of the deepest wounds their child will ever receive. It boggles the mind and daunts the spirit to even consider such a thing! Doesn’t it?

The statistics are bleak concerning children of divorce to begin with. The incidence of depression, fear, anger and feelings of pain directly related to divorce and a “broken” family are significant by anyone’s standards. The statistics for children that have successfully been alienated from a loving parent is even more staggering and alarming!

Can you imagine how horrible it must be for a child to be torn from the loving arms of a parent that has loved, protected and provided for that child since the day they were born? Someone that comforted them, spent time with them and nurtured them for as long as they can remember. Now for reasons they can’t comprehend, that parent is suddenly “the enemy”.

What must it be like to be told (or at the very least strongly encouraged) that they must “hate mommy or daddy” to keep the alienating parent’s love and acceptance. What must go through their fragile little minds when they are taught to call the parent they once looked up to and respected by their first name, essentially taking them out of the role of parent in that child’s life?

How does a child feel when every reference made about one of their parents by the alienating parent to others, is demeaning and cruel. I would speculate that it makes them embarrassed by and resentful of the targeted parent. It makes them hate a part of themselves…

It is trite in family law that the ‘best interests’ of each child is paramount in determining the contact and care of and access arrangements to such child. Such interests have been described as ‘an elusive concept’.

In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

  • the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;
  • the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;
  • the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;
  • the capacity and disposition of the parent to give the child the guidance which he requires;
  • the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;
  • the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;
  • the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;
  • the mental and physical health and moral fitness of the parent;
  • the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;
  • the desirability or otherwise of keeping siblings together;
  • the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;
  • the desirability or otherwise of applying the doctrine of same sex matching;
  • any other factor which is relevant to the particular case with which the Court is concerned.

Source partly from: http://www.keepingfamiliesconnected.org

International abduction of minor children a South African Law Perspective


International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

Grandparents Access to the grandchildren


Grandparents and Contact –The right to see your grandchildren.

In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.

Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others  to:

  • make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
  • strengthen and develop community structures which can assist in providing care and protection for children;
  • promote the preservation and strengthening of families;

And calls for

  • the prioritisation of the best interest of the child,
  • the right to the child being able to participate in any matter concerning that child,
  • a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

  • the best interests of the child;
  • the relationship between the applicant and the child
  • the degree of commitment that the applicant has shown towards the child
  • the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
  • any other fact that should, in the opinion of the court, be taken into account

Compiled by Bertus Preller, Family and Divorce Law Attorney Bertus Preller & Associates

Children Custody Matters, what we can learn from Charlie Sheen


As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town who deals with divorce matters all over South Africa and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Parenting after Divorce, helping your children to cope with divorce


Parenting after Divorce

Following divorce, the role of a spouse ends, yet the role of a parent continues.

The following questions may be helpful –

  • How can I be involved in my child’s life?
  • How do I manage parenting if my ex spouse and I can’t get along?
  • How can I get along with my ex spouse well enough to parent our children together?

Co-parenting means that both parents play an active role in their children’s day-to-day lives. A vital key to successful co-parenting arrangements is how well the parents function. What works best for some divorced parents may not work well for others.

Research has shown that benefits of co-parenting include:

  • Children develop stability.
  • Children continue relationships with both parents.
  • Children are less likely to feel torn between their parents.
  • Children are less likely to feel abandoned.
  • Children are less likely to feel they have to meet the social and emotional needs of their parents.

In every divorce, parents must recognize the importance of finishing what they started namely raising their children. Divorce is extremely difficult for most children. They benefit when they have relationships with both parents and they tend to adjust better to divorce when:

  • Parents don’t place their children in the middle of their conflicts.
  • Both parents respond to the needs of their children.
  • They have a good relationship with both of their parents.
  • Parents don’t argue, especially when their children are present.

Problems between parent and child may result from problems between parents

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle. If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself.

Parents often disagree on how to discipline their children. When mothers and fathers have different rules, children may not respect either set of limits, or they may use the differences to gain power over parents. For example, a mother may change a curfew and the daughter may say to her father, “Mom lets me stay out until midnight.” It’s important to have clear rules and boundaries in your household. Try not to feel guilty if your rules are different than those of your ex-partner. If you are comfortable with the rules you have set, stick with them. When it seems you and your former-spouse can’t agree on certain issues, it helps to restate common goals.

Helping children adjust

Children can adjust to a variety of living patterns, including living in two homes. How well children adjust depends on whether parents can minimize their conflicts, stop arguing and focus on their children’s needs. When parents can’t agree, tell the children there will be separate rules in each home. It may be frustrating, but it’s important to remember that your children need you to be a strong, positive influence in their lives.

The following books can be recommended on the subject of parenting:

Helping your kids cope with divorce the sandcastles way.

The author will empower you to contain your children’s anxiety and feelings of insecurity and to re-establish a measure of equilibrium as effectively as possible. Using loads of case studies from her extensive files, Anne highlights the following: How, when and where to inform your children in an age-appropriate and honest way; Emotional support for you, the parent; Guidance on effective parenting skills to help your children. The how to of active listening, anger management and clear, firm and consistent boundary setting – all with practical examples.

This revised and updated second edition features ideas from the latest research, more information on long-distance parenting, dealing with the courts, and working with a difficult co-parent. “Parents argue a lot before a divorce,” says Dr. Stahl. “If they continue to argue after the divorce, their children will suffer.” Stahl knows parents are not perfect, and he uses that knowledge to show imperfect parents how to settle their differences in the best interests of the children. Often required reading in court-mandated divorce education classes.

Invaluable parenting advice on how to coparent. during and after divorce, from a sought-after expert on parenting topics. As a court-appointed child custody evaluator for 15 years, Dr. Peter Favaro is uniquely qualified to write this must-have guide for parents going through divorce. A child psychologist, he understands the effects divorce can have on families, especially when difficult exes, lawyers, visitation schedules, and other issues directly affect the child. Favaro addresses 50 essential topics in. short, easy-to-read chapters, including 100 dos and donts that will make things easier on your child–and better for your family.

Compiled by:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Parenting Plans and Divorce in South Africa


Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.

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