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Guardians appointed by deceased parent

"My brother passed away and I am now left with his children and a custody battle with his ex. What do I do?"

A few months ago I consulted a lady and her brother. They explained to me that he had divorced and was living with his mother and the three children born of the marriage. They discussed with me the ongoing problems they were having with the ex relating to care and contact of the minor children.

A few days ago I was consulted by the lady and another brother. They told me that the first brother I had seen had passed away from an illness which they never knew about. He was only 45. The three children born of the marriage were 8, 10 and 12 years of age, and were living with the deceased's mother.

Just before his passing away, the deceased had been involved in a protection order matter with the mother of the children. In terms of the court order, the mother of the children was granted contact to the children every second school holiday, reasonable telephonic contact and contact for a reasonable period of time on her birthday, the children's birthday and on Mother's day.

My clients advised me that subsequent to their brother passing away, the ex had been harassing their mother and was being a nuisance. She had apparently been unwelcome at the funeral, but had nevertheless attended. They believed that their brother had passed away as a result of all the stress which his ex had placed him under.

My clients furthermore showed me an affidavit signed by their deceased brother wherein he indicated his wish that if he died, his children should continue residing with his sister or mother. He had no Will signed by him though. It is common to indicate the desire as to where your children should live in the event of death in your Will.

My advice to my clients was that they were not bound to the protection order between their brother and his ex and were therefore under no legal duty to grant the ex the contact to the children mentioned in the protection order. I further explained that the affidavit signed by the deceased carried significant weight as evidence. An affidavit has the same effect as stating something in an open court, as it is signed before a commissioner of oaths.

The ex was threatening my clients to remove the children permanently from their grandmother's place of residence, where they had been residing for a year, and had been residing prior to the deceased's passing away. She further did not pay maintenance for the minor children, even though she had stable employment.

I advised my clients that if the ex tried to use the protection order to secure care of the children, and phoned the police, they should point out to the police the affidavit signed by the deceased. The protection order court is furthermore not the appropriate forum to grant a care and contact order. Such matters can only be dealt with in the High Court.

My advice was that my clients were in a strong position to retain primary care of the children. I advised them to wait for the ex to launch a High Court Application to enforce her rights to the children, before doing anything. On having these court papers served on them, they would have an opportunity to contest the claims of the ex, who they believed to be an unfit parent.

This article was written by Cape Town divorce lawyer, Peter M Baker

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