Ivan Zartz, Author at Ivan Zartz Attorneys

08 Jun

Do Child Custody Orders Expire?

Does a child custody order expire? The short answer is no, a court order will not expire. A judge’s decision concerning a child custody case is deemed to be final.

The only point at which a child custody order will automatically change is when the child reaches adulthood. By the age of 18 a child has his/her own right to where he/she lives, as well as how much contact they want with either guardian. However, this may not necessarily change maintenance orders. A child custody order will often state the maintenance schedule after the child has turned 18, and maintenance often needs to be paid for those children who are studying, where this may be proven to the court, for a set duration.

Some guardians, like those sharing custody of a child, may believe after some time that certain changes can be made. A daughter,aged 15, whose custody is shared by both mother and father, wants to live with her mother only. She also wants occasional weekend visitation with her father. Although she may be mature enough to expect such changes (changes which her mother condones), the mother is still required to submit these changes to court, or through a legal out-of-court settlement with the father.

It is important that guardians do not believe in the myth of court order expiry unless it is stipulated within the court order agreement. In any event, if a guardian believes that there has been a change in situation, and thee child custody agreement no longer stands, then that guardian can be held in contempt of court if he/she has gone against regulation.

When in contempt of court a guardian can suffer a number of legal repercussions. These include having guardianship suspended or terminated, or having important decisions taken away from the guardian. A guardian may be expected to pay a fine, or may be required to forfeit visitation time. In extreme circumstances, a guardian may be arrested.

Make sure that you understand all the rules and regulations concerning child custody. Contact Ivan Zartz today.

03 Jun

Can Child Custody Agreements Be Changed?

Oftentimes circumstance requires us to change ongoing agreements. For circumstances either under or out of our control we are required to make adjustments to decisions, even if decisions involve more than just ourselves.

Changes to lawfully imposed agreements are commonplace in South Africa, and the answer is yes, changes can be made in front of a judge if so desired. Child custody agreements are often changed by a child’s/children’s parents and guardians. These changes can be both all-encompassing or small adjustments.

Changes can be made in much the same way that child custody settlement agreements are made. Parents and/or guardians can reach an out-of-court agreement that is adjudicated by attorneys and lawyers that are able to submit the changes to the court. Again, decisions are made in the best interest of the child. If the changes affect the child negatively then such changes will not be accepted by the South African Family Court. It is important to keep in mind that the court is unlikely to agree to the change of residency from one guardian to another without sufficient reason to do so.

An example of an out-of-court agreement could be that of an adjustment to visitation rights. A father, whose very young child stays in Johannesburg with his mother, works in Durban and requires supervision when visiting with the infant because he is unfamiliar with the routine of looking after a baby. However, after some time, he starts to live and work in Johannesburg, and both parents agree that he should be allowed reasonable contact with the youngster. An attorney can draft a change that will be accepted by the family court judge.

Unfortunately, there are times when one or both guardians/parents want to enforce contradictory changes. When this happens the process is much like an overall settlement agreement within court. Through the assistance of attorneys, disputed changes and amendments are filed with the court before a hearing takes place. Remember that a judge will likely place his/her decision within the best interests of the child.

An example of a disputed change can be when one parent or guardian or associate of the child believes that the child’s guardian or contact is no longer fit to uphold the current arrangements. A young child’s father, who has visitation rights with the child, is suspected of using drugs when in contact with the child over a weekend. The mother, who is the primary guardian, can submit changes to the custody agreement through her attorney. A court hearing will take place where the father can challenge the change. In these circumstances it is essential for the mother to present evidence and/or witnesses that can provide proof for the allegations.

For more information on changes to agreements, and other child custody questions, contact Ivan Zartz.

02 Jun

Benefits of Settling Child Custody Out-of-Court

Taking the matter of child custody to court can often be a lengthy and expensive experience. The court is often the scene of aggravated disputes between parents or carers of the child or children. There is, however, an alternative. Many parents and carers choose to settle their child custody cases outside of the court. Being able to settle cases of child custody out-of-court offers many benefits.

With the guiding assistance of an attorney, parents may reach a settlement agreement with each other. This agreement can be done informally and may cover all areas of child custody, which would include visitation rights and maintenance. Some parents will choose to be represented at the settlement agreement meetings by an attorney who will first and foremost consider the best interests of the child/children, and then that of their client. The settlement agreement will be a written agreement so that it may stand in good stead legally.

The main reason as to why parents would want to make a settlement agreement out-of-court would be to avoid the stress and emotional trauma. Neither the parents nor the children would have to discuss their family environment in front of a judge and his/her officials. A settlement agreement is also a lot less expensive. The written agreement is then presented to the family judge for their approval and signature.

Having agreed on an out-of-court settlement the parents or carers are also more likely to follow an agreed parenting plan. A successful custody agreement means that parents will consider each other’s visitations schedules and maintenance responsibilities. If you intend on peaceful and amicable settlement with your spouse or family member over the custody of your child, make sure to contact our team of experienced attorneys at Ivan Zartz.

01 Jun

Surrogate Parents Need Legal Permission or They Risk Losing All Their Rights to Children

Published in The Times – Tuesday, May 19 2015 By Rosemary Bennett – Social Affairs Correspondent

A senior judge has warned of a surrogacy “ticking time bomb” in the UK, with large numbers of parents failing to obtain legal permission to take care of their new children.

Mrs Justice Theis said that there were up to 2,000 babies born to British or overseas surrogate mothers each year on behalf of couples here, but only “a few hundred” obtain the parental order that they need to ensure that the child is legally theirs.

If a parental order is not obtained the child remains the responsibility of the surrogate mother.

“There are a very limited number of parental orders which come to court each year. My concern is not for the people seeking parental orders but for those who are not making applications. It is a ticking legal time bomb,” she said.

“If no steps are taken to regularise the legal relationship between the intended parents and the child by way of an application to the court, the surrogate remains the child’s legal mother and retains the child’s legal mother and retains parental responsibility.” She said she was also concerned about the psychological impact on children who discovered that their “settled” family situation was in fact legally vulnerable.

She predicted particular problems in the event of the death of one parent, separation and divorce, or when the child’s passport needed to be renewed. In the absence of a parental order, the child would be entitled to a claim on the estate of its surrogate mother, she said.

The number of surrogacy arrangements is rising STEADILY IN Britain, with 95 per cent now being born overseas.

Mrs. Justice Theis, one of three High Court judges who hears applications for surrogacy parental orders. She was speaking at a symposium on international surrogacy organised by the International Association of Matrimonial Lawyers in London.

She recently ruled in the controversial British case of a couple in their 60’s who had twins born twins born to a surrogate in Ukraine. The surrogate mother disappeared during the conflict with Russia and the couple were unable to prove that she was really willing to give up her babies. Mrs. Justice Theis ruled that the couple should keep the babies.

Fiona Kendall, a solicitor at Clarion, a law firm in Leeds, said that agencies should explain the legal steps to their clients. “It would help if fertility clinics made clear this was something that was part of the process,” she said.

Cafcass, The children’s legal service, said that it dealt with only 241 parental order applications last year, a fraction of the children born to surrogates for UK couples. Currently only couples married, civil partners or in long term relationships can have a surrogate child. Mrs Justice Theis said that she would shortly be hearing an application for a parental order from a single woman, a test case for the law.

27 May

Surrogacy Matters: Practical Legal Advice for Commissioning Parents

The affidavit of a surrogacy agreement should contain the following:

All factors set out in the Act together with documentary proof where applicable. The affidavit should contain the information on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate for them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement.

Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused the reasons for the refusal should be set out;

A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner;

A medical report regarding the surrogate mother which must include her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement;

Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process;

All agreements between the surrogate and any intermediary or any other person who is involved in the process;

Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency containing the full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

(a) the business of the agency,

(b) whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy,

(c) what exactly the agency’s involvement was regarding the:
(i) introduction of the surrogate mother,
(ii) how the information regarding the surrogate mother was obtained by the agency and

(d) whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

Whether any of the commissioning parents have been charged with or convicted with a violent crime or a crime of a sexual nature

A clearance certificate by the police of the commissioning parents.