17 Jun

Emergency Child Custody

Unfortunately there are situations and cases whereby the well-being of a child is put in jeopardy. Children of a divorced or separated couple are already vulnerable to emotional trauma, but sometimes a parent, or both parents, can cause a child serious emotional or physical harm. In these cases the other parent, or a caring third-party, might recognize these abuses. Fortunately the ability to secure emergency child custody is a possibility.

What is Emergency Child Custody?

Emergency Child Custody is the courts decision to temporarily change the custody agreement of a child due to outstanding circumstances. This can be when one of the guardians does not fulfill his/her obligations or is directly abusing the child either physically or emotionally. Temporary ‘care’ of the child will either be taken solely by one of the parents in a co-guardian agreement, or will be taken by a family member, a person who cares for the child, or a registered home in the case of a sole-guardian agreement.

When is Emergency Custody Needed

Emergency Child Custody is almost always ensured when there are cases of physical or sexual abuse. The difficulty exists when trying to define the parameters of these abuses. It must be understood that corporal punishment ie. spanking, is also considered abusive. The parameters of sexual abuse is pretty clear, outlined and defined by South African law and can be further read in both the 2005 Children’s Act and the Sexual Offences section of South African Criminal Law.

Emergency Custody may be used when there is a case of child neglect or maltreatment. A child may also be taken from his immediate guardian if there are circumstances that may lead to the serious harming of a child’s being, physical, mental and social. All of the reasons for allowing emergency custody are laid out in Chapter 9 of the Children’s Act.

The Emergency Custody Process

It must be understood that by no means should a co-guardian or carer of the child take the child away from its place of residence, or institute their own measures of removing a child from potentially harmful circumstances. If this is done, then they will be expected to provide proof of neglect, abuse and maltreatment to the court. If they are found to be acting outside of the courts rules then they may face serious repercussions. A parent, guardian, caregiver and/or family friend must notify either the police or a social worker to attend the matter whereby it is their decision as to whom the child should be left with.

A parent, guardian, caregiver and/or friend can bring the matter to court directly without approaching the police or social worker, and, where proof of abuse or neglect is provided, the court may issue the order of emergency custody. Only then may a parent, guardian, caregiver and/or friend remove the child from their present unhealthy environment. In all cases the court will make its decision based on ‘the best interest of the child’ policy.

For any more information regarding child custody, and/or a host of other legal associated queries, contact Ivan Zartz Attorneys today.