The situation: You have a child or children with someone, you were never married or divorced, it matters not. What matters is that you believe you can provide a better home for your child, one of stability, consistency, love, nurturing and the opportunity for your child to grow and develop as a person.
You want your children to live with you.
What law and acts are applicable?
There are a number of acts involved, the most important, however, is the Children’s Act, 38 of 2005. Here are the relevant sections:
Sec 21: Parental Responsibilities and Rights of Unmarried Fathers:
You acquire full (equal) parental responsibilities and rights in respect of a child if:
(1) At the time of the child’s birth you were living with the mother in a permanent relationship.
(2) If you were not living with mother but:-
(i) If you are or consent to be identified as the child’s father or in terms of customary law paid damages;
(ii) Contributes or has attempted to contribute to the children’s upbringing;
(iii) Contributes or has attempted to contribute to the children’s maintenance.
Sec 20: Parental Responsibilities and Rights of Married Fathers:
You have full (equal) parental responsibilities and rights in respect of a child if:
(1) If you are married to the child’s mother.
(2) If you were married to her at the child’s conception, birth or time between conception and birth.
Sec 33: Contents of Parenting Plans:
This is the document to be made an order of court, (either by consent or through litigation) that regulates:
(1) Where and with whom the child lives.
(2) Maintenance payable and by who.
(3) Contact between the child and the parties and other parties, such as grandparents.
(4) Schooling and religious upbringing of the child.
Can a father obtain custody of his children in preference over the mother?
With a competent lawyer, yes he can:-
Van der Linde v Van der Linde, a 1996 case in which the court stated that the quality of the parental role is not determined by gender and the concept of “mothering” is as much a component of a man’s being than of a woman.
What is the process in broad strokes?
1. Your specialist attorney draws up a parenting plan in accordance with your instructions.
2. It is presented to the mother of the children for her input.
3. If you don’t agree, you attend a mediation with a mediator whom assists in helping you over the differences.
4. If the above does not bring agreement (a certificate of failed mediation is issued) you proceed to court asking that the parenting plan be made an order of court and the matter proceeds to trial.
What has to be proved to court?
Sec 7: The best interest of the child standard.
There are a host of factors but what it comes down to is that the terms of your parenting plan (which includes where the children live) is in their best interest that they live with you. In short, that you can provide a better home for your children -one of stability, consistency, love, nurturing and the opportunity for them to grow and develop as well rounded persons, whom can not only face life’s ups and downs but productively contribute to society.
Should I brief an attorney?
Yes. Not only should you brief an attorney but you should brief a specialist matrimonial attorney whom is preferably a member of the Gauteng Family Law Forum. Divorce, matrimonial and family law have become a highly specialised area of law. Just as you would not have your dentist perform heart surgery on you, having a general practitioner do specialist matrimonial work (and custody disputes fall squarely in this category) you should rather have a specialist matrimonial lawyer assist you.
Custody disputes are bitter and emotionally draining. A competent specialist practitioner will attempt to deal with matters outside of litigation, via alternate dispute resolution mechanisms, before dragging the matter to litigation.
Even though it’s a difficult fight, it’s worth it.
Shando Theron of Theron & Theron Divorce & Matrimonial Attorneys
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