Child Law & Custody Attorneys
Sometimes life doesn’t turn out the way we planned, and families break apart. In times like this, it is important to have an expert child law and custody attorney by your side to make sure that your children are protected, and that they experience as little trauma as possible.
Benita Ardenbaum Attorneys is a specialist family law firm that is experienced in handling child law, family law, divorce law, and personal law. They are experts in mediation and have a high success rate in cases that they have handled both locally and internationally.
The Role of Child Custody Lawyers
Child custody lawyers are legal professionals who specialise in handling cases related to child custody and visitation. They play a crucial role which includes the following.
Protecting the Best Interests of Children
The primary duty and responsibility of a child custody lawyer is to prioritise the best interests of the children. This means they may recommend custody and visitation arrangements that are in the children’s best interests, even if it goes against their client’s preferences.
Providing Legal Guidance and Representation
Child custody attorneys provide legal advice and guidance to their clients. They explain the legal process, the relevant laws, and the potential outcomes of child custody cases. They help their clients understand their rights and responsibilities and where necessary represent them in court or take the role of mediator.
Ensuring Fair Custody Arrangements
They assess the specific details of the case, including the child’s age, needs, and preferences, the parents’ living situations, and any other relevant factors. They use this information to help develop a strategy that aligns with the best interests of the child and ensures a fair outcome for all parties that will not be detrimental to any children involved.
Handling Complex Custody Cases
Complex custody cases can be emotionally charged and legally intricate. Child custody lawyers play a critical role in guiding their clients through these challenges while striving to create a stable and healthy environment for the child. A thorough understanding of the facts is needed, including looking at factors such as substance abuse, domestic violence, or mental health concerns, and a strong legal strategy needs to be prepared, consulting with experts where needed.
Why You Need a Child Custody Lawyer
Engaging one of the best child custody lawyers, like Benita Ardenbaum Attorneys, is advisable in child custody disputes, as they can assist you with the following to ensure that the best interests of your child are protected during the process.
Navigating the Legal System
Our team of experts have a deep understanding of family law and child custody regulations. They can help you navigate the complex legal system, ensuring that you comply with all the relevant laws and regulations.
Protecting Your Rights as a Parent
Although the well-being of your child comes first, we provide you with legal guidance and ensure that your rights as a parent are protected throughout the process as well.
Negotiating a Fair Custody Arrangement
An expert custody attorney is crucial in negotiating a custody arrangement that is fair to all parties and keeps the best interests of the child in mind. They can facilitate open and respectful communication and can assist in creating a parenting plan beneficial to all parties, or assist in court when necessary.
Choose Benita Ardenbaum Attorneys as Your Child Custody Lawyer
The team of professional and experienced child custody lawyers at Benita Ardenbaum Attorneys are 100% committed to negotiating a fair custody arrangement that considers both the parents and the child’s best interests.
Let us help you to navigate this process with as little trauma as possible. Contact us today by either completing the form below or getting in touch directly.
If you and the other parent of your child are experiencing difficulties exercising care of, and/or contact with your child, we can assist you by entering into discussions with the other party in an attempt to resolve the issues or by referring you to mediation with a properly trained and experienced mediator. Whilst we will do our utmost to attempt to resolve issues without recourse to the court, should this not be successful, we are experienced in all forms of litigation in this regard and have a number of experts at our disposal to assist us should this becomes necessary.
Parental rights and responsibilities
Chapter 3 of the New Children’s Act SA governs both the acquisition and loss of parental responsibilities and rights not only by the parents of the children involved but also in respect of other persons. A person may have either full or specific parental responsibilities or rights in respect of a child. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the maintenance of the child.
A parent or other person who acts as guardian of a child must administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and other legal matters or give or refuse any consent required by law in respect of the child, including consent to the child’s marriage, consent to the child’s adoption, consent to the child’s departure or removal from the Republic, consent to the child’s application for a passport; and consent to the alienation or encumbrance of any immovable property of the child.
Whenever more than one person has guardianship of a child, each one of them is competent, unless any other law or any order of a competent court specifies the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of the above paragraph.
For direct answers to your specific personal questions, please contact us directly.
The Children’s Act (“the Act”) does not contain a definition of a parenting plan. However, the Act refers to an agreement in which the co-holders of parental responsibilities and rights can make arrangements on the way in which they will govern and exercise their respective responsibilities and rights. The Act discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising their responsibilities and rights. Parties who experience difficulties in agreeing on their respective responsibilities and rights are required to mediate before seeking court intervention. If one of the co-holders refuses to engage in discussions about a parenting plan, the court may be approached. The parties are required to seek the assistance of a Family Advocate, social worker or a psychologist to assist them in reaching agreement, or mediation through a social worker or suitably qualified person in preparing a parenting plan.
Formalities
A parenting plan must be in writing and signed by the parties to the agreement. Such parenting plan may be registered with a Family Advocate or made an Order of Court. An application by co-holders for the registration of the parenting plan, or for it to be made an Order of Court, must be in the prescribed format, contain the prescribed particulars and be accompanied by a copy of the parenting plan. In certain instances, a statement by a Family Advocate, social worker or psychologist to the effect that the plan was prepared after consultation and/or mediation with such person must also be submitted.
A parenting plan registered with a Family Advocate may be amended or terminated by the Family Advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. A parenting plan that was made an Order of Court may be amended or terminated only by an Order of Court on application by the co-holders of parental responsibilities and rights who are parties to the plan, or by the child, acting with leave of the Court, or if it is in the child’s interest, by any other person acting with leave of the Court.
How can we help?
As highly experienced professionals, we can advise you on your responsibilities and rights and assist you to negotiate a suitable parenting plan that is in the best interests of your children. We can also assist you in having same registered with the Family Advocate or made an Order of Court depending on the circumstances of your particular matter.
For direct answers to your specific personal questions, please contact us directly.
parenting plans and agreements
custody
When parents are going through a divorce or separation they may have a dispute between them as to which parent will have primary residence and care (custody) of the children.
Such fights between the parents could potentially lead to the children been traumatized by such a process which could have a long-lasting and damaging effect on them.
Formalities
At Benita Ardenbaum Attorneys we have dealt with many cases relating to children, and so we are sensitive to your and your children’s needs.
Our primary objective is to assist you to make child-focused decisions based on the best interests of your children.
Our team of family law experts will provide you with guidance and answer your questions on a wide range of issues which relate to children and which include but are not limited to the following;
- Explaining Parental responsibilities and Rights in terms of the children’s act 38 of 2005;
- The issue of which parent the children will live with or whether there will be a joint residence scenario;
- The contact (access) arrangements by the non-resident parent;
- Provision of maintenance and how maintenance is determined;
- Guardianship of children and the difference between guardianship and care (custody ) of children; and
- Issues such as which parent gets to make the decisions about which schools the children attend, their medical and dental treatment and their religious upbringing.
Once we have consulted we will be able to determine what strategies to implement and whether we try and settle the matter out of court, mediate or Litigate.
What ever process is adopted we will ensure that we provide you with the best approach to support you and your children and prepare you for the process and the outcome.
We work in collaboration with highly experienced counsellors and other expert consultants to ensure that you transition through the process with confidence and ease.
For direct answers to your specific personal questions, please contact us directly.
Guardianship, Contact and Care
A child’s guardian must administer and safeguard the child’s property and property interests, assist or represent the child in administrative, contractual and other legal matters, or give or refuse any consent required by law in respect of the child, including consent to the child’s marriage, adoption, departure or removal from the Republic, application for a passport and the alienation or encumbrance of any immovable property of the child.
Care
Care of a child means providing a child with a suitable place to live, living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, within the available means of the parent or carer-giver. It also means safeguarding and promoting the well-being of the child; protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards. A child’s caregiver is also required to guide, direct and secure the child’s education and upbringing, including religious and cultural, in a manner appropriate to the child’s age, maturity and stage of development. A caregiver is also required to maintain a sound relationship with the child, accommodate any special needs that the child may have, and generally, ensure that the best interests of the child are the paramount concern in all matters affecting the child.
Contact
Having contact with a child means maintaining a personal relationship with the child. If the child lives with someone else, then it means having communication on a regular basis with the child in person, including visiting the child; or being visited by the child; or communication on a regular basis with the child in any other manner, including through the post; or by telephone or any other form of electronic communication.
Primary residence
The term primary residence is not defined in legislation; however, this is the term most commonly used by the Family Advocate and the Court to describe the home of the parent or other caregiver with whom the child will primarily live, in other words, which home will be the child’s main place of residence. This parent is often referred to as the “resident parent”. The non-resident parent then has a right to maintain contact with the child, which generally includes physical contact whereby the child spends a number of days with that parent, including over-night and telephone or Skype contact.
What are your rights to care and contact?
There is no fixed “rule” regarding the care of and contact with children. Care and contact are awarded based on a number of factors, which will depend entirely on the specific circumstances of your matter. There has been a marked increase in the number of children who have what is referred to as “shared residence”, whereby the children spend equal amounts of time with each parent on a rotational basis. This is however, dependent on the age, maturity and gender of the children and the proximity of each parent’s home to each other.
How can we help?
If you and the other parent of your child are experiencing difficulties exercising care of, and/or contact with your child, we can assist you by entering into discussions with the other party in an attempt to resolve the issues or by referring you to mediation with a properly trained and experienced mediator. Whilst we will do our utmost to attempt to resolve issues without recourse to the court, should this not be successful, we are experienced in all forms of litigation in this regard and have a number of experts at our disposal to assist us should this becomes necessary.
For direct answers to your specific personal questions, please contact us directly.
unmarried fathers rights
In terms of South African law, a child’s biological mother automatically obtains full parental responsibilities and rights. Furthermore, the biological father of a child, if he is married to the child’s mother or if he was married to the child’s mother at the time of conception, birth or any time in between, obtains full responsibilities and rights. Parental responsibilities and rights, as defined by law, are the responsibility and right to care for the child, maintain contact with the child, act as guardian of the child and contribute towards the child’s maintenance.
However, where a father was not married to the child’s mother around the time of conception and/or birth, he can still obtain these rights if he was living with the mother in a permanent life partnership at the time of the birth, or if he agrees to be identified as the child’s father on the birth certificate (or pays damages in terms of customary law), and he has contributed to, or attempted to contribute towards, the child’s upbringing and maintenance expenses for a reasonable period.
Legal procedure in case of disputes
If there is a dispute between the unmarried mother and father of the child about whether or not the father has acquired parental responsibilities and rights, such dispute must be mediated by a family advocate, social worker, social service professional or other suitably qualified person, prior to the parties approaching the court.
Where a father chooses not to acquire parental responsibilities and rights, he still has the obligation to maintain his biological child.
An unmarried biological father may also apply for an amendment to the registration of the birth of the child identifying him as the father of the child, if the mother consents to the amendment. Where the mother refuses to give such consent, or cannot consent due to mental illness, or where she cannot be located, or is deceased, the father may bring an application to the high court for an order confirming his paternity.
Where a purported father denies paternity, and refuses to contribute towards the maintenance of a child, and it can be proved that the man had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is presumed to be the father of the child unless there is contradictory evidence.
Once paternity has been established, the father of the child is obligated to contribute towards the child’s maintenance. The maintenance amount payable is calculated based on the financial means of the parents and the reasonable needs of the child.
The Children’s Act 38 of 2005 made big changes in terms of the rights of unmarried biological fathers to automatically obtain responsibilities and rights. The new legislation, accordingly, supports and protects fathers who want to be involved in their children’s lives.
How can we help?
With our experience, we understand the difficulties faced by unmarried parents. Whether you are an unmarried father wishing to have care of and contact with your child, or an unmarried mother seeking maintenance from the child’s father, we can assist you to achieve this. Our aim is always to attempt to resolve family issues through mediation or collaborative law. Section 33 of the Children’s Act specifically mandates mediation in circumstances where there is no parenting plan in place and where parents are having difficulty in exercising their parental responsibilities and rights. However, where this is unachievable, we can assist with the appropriate court proceedings.
Unmarried fathers’ rights
In terms of South African law, a child’s biological mother automatically obtains full parental responsibilities and rights. Furthermore, the biological father of a child, if he is married to the child’s mother or if he was married to the child’s mother at the time of conception, birth or any time in between, obtains full responsibilities and rights. Parental responsibilities and rights, as defined by law, are the responsibility and right to care for the child, maintain contact with the child, act as guardian of the child and contribute towards the child’s maintenance.
However, where a father was not married to the child’s mother around the time of conception and/or birth, he can still obtain these rights if he was living with the mother in a permanent life partnership at the time of the birth, or if he agrees to be identified as the child’s father on the birth certificate (or pays damages in terms of customary law), and he has contributed to, or attempted to contribute towards, the child’s upbringing and maintenance expenses for a reasonable period.
Legal procedure in case of disputes
If there is a dispute between the unmarried mother and father of the child about whether or not the father has acquired parental responsibilities and rights, such dispute must be mediated by a family advocate, social worker, social service professional or other suitably qualified person, prior to the parties approaching the court.
Where a father chooses not to acquire parental responsibilities and rights, he still has the obligation to maintain his biological child. An unmarried biological father may also apply for an amendment to the registration of the birth of the child identifying him as the father of the child, if the mother consents to the amendment. Where the mother refuses to give such consent, or cannot consent due to mental illness, or where she cannot be located, or is deceased, the father may bring an application to the high court for an order confirming his paternity.
Where a purported father denies paternity, and refuses to contribute towards the maintenance of a child, and it can be proved that the man had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is presumed to be the father of the child unless there is contradictory evidence.
Once paternity has been established, the father of the child is obligated to contribute towards the child’s maintenance. The maintenance amount payable is calculated based on the financial means of the parents and the reasonable needs of the child.
The Children’s Act 38 of 2005 made big changes in terms of the rights of unmarried biological fathers to automatically obtain responsibilities and rights. The new legislation, accordingly, supports and protects fathers who want to be involved in their children’s lives.
How can we help?
With our experience, we understand the difficulties faced by unmarried parents. Whether you are an unmarried father wishing to have care of and contact with your child, or an unmarried mother seeking maintenance from the child’s father, we can assist you to achieve this. Our aim is always to attempt to resolve family issues through mediation or collaborative law. Section 33 of the Children’s Act specifically mandates mediation in circumstances where there is no parenting plan in place and where parents are having difficulty in exercising their parental responsibilities and rights. However, where this is unachievable, we can assist with the appropriate court proceedings.
For direct answers to your specific personal questions, please contact us directly.
Hague convention and international child abduction
Relocation disputes between parents are frequently brought before our courts. Where both parents have guardianship the consent of the “left behind” parent is needed in order to relocate with a minor child. Typically, a relocation dispute will arise when one parent, normally the parent who has primary residence, decides to relocate to another town, province, or country. Often, the left behind parent will refuse to consent to such relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. Such cases are decided on a case-by-case basis depending on the specific circumstances involved.
Factors considered by the courts
The primary consideration is the best interests of the child. Other factors include whether the decision by the parent to relocate is reasonable and bona fide and the impact on the left behind parent and his/her relationship with the child. For example, the court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. The court found that the practicalities of the mother’s decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.
International child abduction
South Africa is a party state to The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”), an international treaty aimed at preventing the unlawful removal of a child from the jurisdiction in which he/she normally resides, without the consent of the other parent or caregiver, and to facilitate the return of a child wrongfully removed.
The purpose of the Convention is to secure the prompt return of any child wrongfully removed to, or retained in, a contracting state. The purpose of obtaining the child’s return is that the court with jurisdiction is better appraised to deal with the merits of the matter. Furthermore, the left behind parent is at a considerable disadvantage in litigating a contested claim for care and contact in the courts of a country other than those of the place of habitual residence. Few people can readily afford litigation in their own jurisdiction, let alone in foreign courts, where the legal system may be different, laws and even language unfamiliar, costs substantial, and facilities for legal assistance difficult to obtain or non-existent.
When might the other country not return my child?
A court in the other country may refuse to return the child if:
- it is not convinced that the key requirements of the convention have been met
- it determines that you (the applicant) had agreed to the child being taken or kept in that country, or subsequently acquiesced (see below) to the removal or retention
- the child has been in that country for more than twelve months and is settled there
- the child objects to being returned and is old enough and mature enough for their opinion to be considered
- returning the child would expose them to a grave risk of physical or psychological harm, or some other intolerable situation, or
- returning the child would breach their fundamental freedoms and human rights.
What is ‘acquiescence’?
If someone ‘acquiesces’ to something, they consent to it or allow it to happen. Under The Hague Convention, one of the reasons a court may decide not to return a child to its habitual residence is if the court believes the applicant ‘subsequently acquiesced’ to the removal of the child, or their retention in the other country. It is up to the court to decide what constitutes ‘subsequent acquiescence’ and whether or not the applicant did in fact acquiesce.
However, common actions that may raise a question of acquiescence include:
- engaging in court proceedings in the country where the child is located, apart from those in relation to The Hague Convention application (this may indicate that you give permission for the child to remain in that country, or that you have ‘submitted to the jurisdiction’)
- providing verbal or written agreement to the abducting person that you consent to the child being taken to, or remaining in, a country (either before, during or after the removal or retention)
- helping the abducting person make decisions about the child’s living arrangements in the other country, such as where the child should live or go to school
- any other action which may indicate that you give permission for the child to remain in the country they have been taken to or held in.
How can we help?
We have a team of highly experienced professionals who have successfully handled Hague Convention cases emanating from a number of countries around the world. As with all our matters, our first priority is always to attempt to find resolution without the need for litigation, however, in most Hague Convention matters this is unavoidable given the urgency of the proceedings.
For direct answers to your specific personal questions, please contact us directly.
child maintenance
The biological or adoptive parents, guardian or grandparents of a child are liable to maintain that child. The grandparents are only liable to pay maintenance in circumstances where the parents are unable to do so.
What constitutes maintenance and how much is payable?
Maintenance includes the provision of food, clothing, accommodation, medical care and education. In terms of the common-law maintenance for a child is payable until such time as the child becomes self-supporting. The amount of maintenance payable depends on the needs of the child and the financial means of the person or persons liable to pay such maintenance. Such persons will be liable to pay maintenance on a pro rata basis based on their means.
Maintenance disputes
Most maintenance disputes (apart from interim maintenance in divorce proceedings) are handled by the maintenance court, which is situated at most magistrate’s courts around the country. You can apply to the maintenance court for a maintenance order, where none is in place, or for a variation or discharge of an order, where there is an order in place. The applicant is required to complete the necessary forms and provide certain documents to the maintenance officer, including a copy of any existing order, copy of the applicant’s identity documents, copies of birth certificates of the children and three months bank statements.
The maintenance officer will thereafter issue a “directive” or a “subpoena”, which will be served on the respondent i.e. the person against whom the order is sought. Both parties will be directed to appear at court on a future date and will be called upon to provide certain documents to the court. The maintenance officers do what they can to get the parties to settle the dispute without the need for a formal enquiry, but should this prove impossible, a date will be set for a formal hearing.
It is vital that you, as either the applicant or the respondent, make a full and frank disclosure to the court of your income and expenditure, which must include payslips, banks statements and where necessary, invoices, receipts and till slips. It can become difficult to prove the other party’s ability to pay maintenance, in circumstances where that person is self-employed. In such circumstances, it will be necessary to request the maintenance officer to issue a subpoena against the other party’s bank(s) in order to ascertain their income and expenditure.
The formal hearing
A formal hearing in a maintenance matter is run like any other trial in which oral evidence is heard from both parties and any other witnesses. Witnesses can be questioned by either party and the magistrate. It is up to the applicant to prove his or her case. For example, where the applicant is applying for an order for maintenance, he or she must prove that there is a need for maintenance, how much maintenance is required and what he or she earns. The Respondent can dispute these facts and is required to prove his or her means and ability to pay the amount claimed or any other amount which the court may order.
How can we help?
Maintenance matters can become extremely litigious where the parties are unable to reach agreement on the amount of maintenance required and/or their ability to pay. Where there is a possibility that the matter will be referred to a formal hearing it is best to seek legal advice from the outset to ensure your case is properly managed and that the correct documents are put before the court. Our trained and experienced professionals can assist you, whether you are the applicant or respondent in a maintenance matter to ensure your matter is handled quickly and as effectively as possible.
For direct answers to your specific personal questions, please contact us directly.
paternity disputes
Child born to married parents
In terms of the common law the husband of the mother of a child, is presumed to be that child’s father, until the contrary is proven.
Child born out of wedlock
In terms of the Children’s Act a similar presumption applies to a child born out of wedlock. The presumption is that the person who had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.
In the case of S v L 1992 (3) SA 713 (E) the Court held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate, or ceases to operate. This confirms the court’s finding in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” merely requires evidence, not proof, to counter the presumption.
Paternity tests
The Children’s Act provides that if a party in any legal proceedings in which the paternity of a child has been placed in issue refuses to submit himself or herself, or the child, to take a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on his or her credibility. For example, if a mother claiming maintenance for her child refuses to submit herself and her child to such tests in circumstances were the alleged father claims not to be the biological father of the child, an adverse inference will be drawn against the mother and if there is sufficient evidence of, for example, the mother having had sexual relations with another man at the time of the child’s conception, the alleged father will be relieved of any parental responsibilities and rights in respect of that child.
How can we help?
If you find yourself in a dispute as to the paternity of a child, one of our trained and experienced professionals will gladly assist you and advise you in regard to the best course of action, whether that be through paternity tests, mediation or litigation.
For direct answers to your specific personal questions, please contact us directly.
relocation disputes
Most relocation disputes arise post-divorce when the parent with primary residence of the child decides to relocate to a foreign country. Disputes may also arise when one parent wishes to relocate to another Province within South Africa, however these are less often the cause of lengthy litigation. The Children’s Act does not expressly deal with relocation disputes and, accordingly, we have to rely on case law in this regard.
Case law in respect of relocation disputes
Early case law reveals that our courts previously favoured the pro-relocation approach. Where primary caregivers gave mature, rational thought and bona fide reasons for relocating; then the presumption was that relocation was in the best interest of the child. However, more recent case law in the context of the Children’s Act seems to be leaning towards a more neutral position, where neither parent should have a presumptive right to relocate or block relocation and each case is determined on its merits.
How can we help?
Relocation disputes are rapidly becoming common place with the globalisation being experienced around the world and with many people marrying people of other nationalities. Our professional staff have vast experience in dealing with such disputes. We will always endeavour to negotiate such disputes to reach a settlement that is in the best interests of the children involved and which best protects both parents’ rights to contact with the children. Where this becomes impossible, we are well versed in the legal proceedings involved, including Hague Convention proceedings, which come into play when one of the parents removes the children from their country of habitual residence to take up residence in another country, without the consent of the other parent.
For direct answers to your specific personal questions, please contact us directly.