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When Grandparents want custody ahead of parents
The role of the Children’s Court in determining the suitability of a spouse to get custody of minor children. Appointment of a family advocate by the court to investigate parents to establish if they are suitable to raise any child born of their marriage.
I am currently involved in a case in the Wynberg Children’s Court which is quite an interesting one. My client is a middle-aged lady with children. Three of the children are born out of a previous relationship and she has one child with a man who she is currently married to, in community of property.
About six months ago, the parties went through a difficult period in their marriage. My client’s husband left the matrimonial home and went to stay with two of the children at a cabin owned by him. The other two children were left at the residence of my client’s mother, in a different suburb and about a half an hour’s drive from my client and her husband’s residence.
It was basically a situation where my client arrived home one day to an empty house. It appears as though my client’s husband at that stage was on good terms with my client’s mother and her boyfriend, who live together.
On his return from the cabin, my client’s husband moved back into the apartment formally shared by them, with her and the two children who had accompanied him on his visit to the cabin. They resumed their marital relationship and agreed that they would make all efforts to work on their marriage, as they still loved each other and believed that the decision was in the best interests of all the children.
The four siblings had been happy all having lived together and all of a sudden were in two separate households. They love each other as “real” biological siblings would. I believe that it is never ever in the interest of the children to be split up in this way. Usually the courts and the family advocates, who are appointed by the courts to look into what is in the best interests of a child(ren) would share the same view.
In between all of this my client’s husband had applied for a protection order against my client, which he had subsequently not gone ahead with. My client’s mother’s boyfriend had also applied for one and was awarded a protection order against my client (before I had gone on record in the case).
My client had consulted me about a week before my first appearance at the Children’s Court. The enquiry related to my client’s alleged drug use and not acting in the children’s best interests. There had been another attorney involved at the previous hearing, where the court had made an order allowing two of the children to continue living with my client and her husband, and the other two to continue living with my client’s mother and her boyfriend.
At court on my first appearance, the court made the same order except for a change in the contact arrangements. My client had been petrified before we went to court that her mother would be awarded care of all four children. So all in all it turned out to be a good result. My client and her husband no doubt had little, if anything, to say to my client’s mother and her boyfriend as we waited in the court corridors.
The matter has now been set down for trial nearly three months from now. The other side are relying on a social worker’s report which paints a bad picture of my client, and contains submissions totally devoid of any truths. This report, according to my instructions, is based on a mere fifteen minute interview with my client and her husband. I tried to discuss the report with the social worker as we waited outside court around tea-time but could not get to speak to her as she was sitting down casually chatting to my client’s mother.
The courts go out of their way to protect minor children. On the facts of this case, there is no proof that my client is a bad parent, and I have seen no proof of substance abuse or other abusive behavior by my client or neglect of the children. The courts usually favour the rights of a biological parent first and foremost, and the grandparent stands third in the queue (after each biological parent). We now need to find an expert witness such as a child psychologist to draw up an independent report which we can hand up in court at the trial, as part of my client’s case. The trial should be an interesting one.
Child-related divorce matters
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Child custody for the father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child maintenance matters
Maintenance & custody of adopteed children
Maintenance for the unborn child
Children suing for maintenance
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life insurance & divorce in South Africa
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Quote for Family Lawyer
Ask legal questions about divorce and children here.
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