What do travel restrictions during the corona virus mean for divorcing parents?

What do travel restrictions during the corona virus mean for divorcing parents?

Corona virus/ Covid 19: Can I see my Children? How do I see my children?


In terms of the South African Covid Regulations the movement of children between co-holders of parental responsibilities and rights or a caregiver, in the same metropolitan area or district municipality is allowed subject to the following conditions:

The parent wishing to exercise contact for visitation must have:


  1. a court order; or
  2. a parenting plan, registered with the family advocate


This leaves a big problem for parents who are still in the process of divorce, but have not yet finalized the Divorce or where a interim Rule 43/58 Order is not in place. Moreover, even if you have a parenting plan, if it is not registered with the Family Advocate, issues may arise.


Our practice has had many cases over the period of lock-down where parents are arguing, refusing to provide children for visitation or refusal to return children after visitation. This has resulted in costly correspondence and litigation between parents, via the Courts.


Parents should at all times remember that their children should, where suitable, have access to both parents, within reason. Of course, this does not mean allowing your child to visit a parent who has been absent from the child’s life or has a history of drug, alcohol or other abuse problems. The best interests of the child are always of paramount importance.


Wherever substance or other abuse is suspected or known, make sure to bring this information to the attention of your attorney. They will advise you on whether to approach the Family Violence Court, Children’s Court or relevant forum, the estimated costs thereof as well as estimated duration.


Please bear in mind that although Children’s matters are almost always considered Urgent, the Courts are at a back log due to Corona Virus and thus your attorney would also be in the hands of the court, dependent on the Urgency of the matter and the harm that will be suffered to either party (including the children) as to when a matter is able to be heard. It is thus of paramount importance to discuss all the facts of your matter with your attorney, openly and honestly, rather than leaving any relevant information out.


In the event that you believe that your child is being alienated from you by your spouse, you should discuss the matter as soon as possible with your attorney. Many parents are under the incorrect assumption that children do not need both parents in order to be raised adequately, or that if one parent fails to contribute to the maintenance of a child, that visitation to such child may be terminated. This is wholly incorrect and it cannot be over stated: maintenance and visitation are two separate things.


Conversely, if you are of the opinion that your spouse is abusing any substances, is physically or emotionally abusive (or any other type of abuse) and that this may impact you personally or your child (or both), urgently seek the assistance of your attorney so that you may urgently obtain a Family Violence Order or refer your maintenance issue to the Maintenance Court.


Maintenance Courts continue to operate during the Pandemic of Covid-19 as do Domestic Violence Courts as well as Urgent Courts for Urgent matters (please note Urgency is a legal term and used only in certain instances. Although everyone believes their matter to be Urgent to them, as harsh as it may sound, it may not satisfy the Urgency requirements of the Court. In order for your matter to be seen as Urgent, you would have to prove urgency that allows your matter to “jump ahead” of all the other people in South Africa’s maintenance, children, business etc matters). Your attorney will advise you on whether your matter is likely or not to be deemed urgent by the Courts.


It is of paramount importance to consult with your attorney adequately before embarking on any course of action, without adequate legal advice. Raising a matter of Urgency which the Court does not deem Urgent may result in a punitive cost order against you and during Covid-19, may even result in a punitive cost order against your legal team.


Contact us today for your consultation and know your rights! https://www.hamelattorneys.co.za/contact/

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