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Jurisdiction in child custody matter

Determining which court has jurisdiction to hear a child custody application and the raising of 'Point in Limine'

What happens if two parties are getting divorced and the one party suddenly takes the minor child and moves to a different province? Or even moves to a different country?

The unfortunate reality of the matter is that if there is no court order in place, it will not always be that easy for the applicant to succeed with a high court notice of motion to have the child returned, even if the child had been living with that person for a long time prior to the child being taken away by the other parent. The same would apply if there was no divorce underway, and the parties had never been married, but merely had a child together, and there was no formal court order in place dealing with the care and contact of the minor child.

Usually in this kind of situation where a child is removed by one party to a different province without the consent of the other party, the other party would launch a so-called “urgent application” to the high court to have the child returned as a matter of urgency. In the normal course you would have to give a certain amount of days’ notice to the other side to defend the matter and file opposing papers. In order to succeed with an urgent application you have to give proper grounds for urgency. You have to be able to show valid grounds as to why your matter should be allowed to move into the “fast lane” as it were. 

Sometimes the other side opposes the urgent application on the grounds of the application not being urgent. At times a so-called “point in limine” is raised. This is a point dealing with a certain aspect of the application where the opposing party argues that the application should automatically be dismissed. This could be due to the lack of urgency in the matter, the application having been made with a court which has no jurisdiction or due to some other type of reason.

In a matter where a child is removed from one province to another and an application is brought to have the child returned, the application must be launched in the court where the child now resides. Section 1 of the Child Care Act defines “resides” as the place where the child eats, drinks or sleeps or where his/her family eats, drinks or sleeps. If there is no court order in place, the common law principles of jurisdiction would apply and the court within which area the child resides at the time, would have jurisdiction.

If a child, for example, had been living with his father in Gauteng, and the mother removes the child to go live with her and her family in Cape Town, and there is no court order dealing with care and contact to the minor child, the man must apply to the Cape High Court to have the child returned. If he launches an application with the Gauteng High Court, a point in limine can be successfully raised that the Gauteng High Court does not have jurisdiction as that is not where the child now eats, drinks or sleeps.

article written by Cape Town divorce attorney, Peter M Baker

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