ChrisV Posted February 22, 2006 Report Share Posted February 22, 2006 (edited) Hi All Some you may have see me on the "other” forum I have question on Child custody.My ex wife says she will not allow me to take my son out of the country. I have Full custody but need to find out what her chances is of stopping me.Here is the part of our divorce settlement. (In Afr as I don't want to loose some meaning when translating )++++++++++++++BEWAARING, TOESIG EN BEHEER OOR DIE MINDERJARIGE KINDDat dit ooreengekom word tussen die partye dat bewaring, toesig en beheer aan die verweerder toegestaan word.++++++++++++++Bietjie verder aan se dit ook.TOEGANGSREGTEDie eiseres behou haar reg van redelike toegang tot die minderjarige kind, maar altyd onderworpe daaraan dat sodanige toegang nie inbreuk maak op die skool-,kerk - en sosiale aktiwiteite van vermelde kind.++++++++++++++So wat staan my te doen en wat is haar kans om my seun te stop ??? Edited February 22, 2006 by ChrisV Quote Link to comment Share on other sites More sharing options...
Guest Seoul Sister Posted February 22, 2006 Report Share Posted February 22, 2006 Hi Chris,Doen die ma op die oomblik enige iets met haar reg tot toegang ? Sien sy die kind of 'n gereelde basis ?GroeteSS Quote Link to comment Share on other sites More sharing options...
Caroline Posted February 22, 2006 Report Share Posted February 22, 2006 Hi ChrisEish... not nice...however, not impossible.I don't understand afrikaans so I am just giving a full answer:We discussed this with our lawyer (the what if they say no...) apparently it goes like so....1. remember if you have sole guardianship she can not stop you. She can try but the cost will be on her and believe you me it can take a long time. She will still have the right of access even if you leave the country.2. If you have custody but not sole guardianship-you go to court to ask the courts permission to take your child with you-the court will have to decide if it is in the best interest for the child to be taken away from you and be placed back with the mother.-you will have to show the court your reason for leaving-evidence of employment apparently goes down very well with them. that you have made decent arrangements for the childs education, housing etc etc. prepare to convince the court that you have thought about this seriously and prove to them that it is a decision made in the best interest of the child and you ability to provide for the child.Basically: a strong argument that "I have to leave, there is no other choice"+"the child's future is better with me than with her"+"the child is not better off with her than with me for the following reasons..psychological/financial/educational"Have you thought of getting a lawyer-these things can get dragged out so... I will ask one of my lawyer friends some more questions but I'm not sure what more you want to know? Quote Link to comment Share on other sites More sharing options...
Guest Seoul Sister Posted February 22, 2006 Report Share Posted February 22, 2006 Hi Chris,I agree with Caroline.1. You will be able to leave the country with your child without consent of the mother, since you do not need the permission of your ex to apply for a passport for your child. " In terms of South African passport regulations, the parent who has sole custody and sole guardianship can sign passport applications of their children on their own."http://www.southafrica-newyork.net/homeaff...ports/child.htm2. Once you have left the country Australia will not force you to return the child under the Hague Convention nor under the International Child Abduction Remedies Act which requires : 1. The child was habitually resident of the country from which the child was abducted/removed 2. The petitioning parent (the mom in this case) had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and 3. At time of wrongfully removal, the petitioning parent was exercising those rightsBurden of proof is upon the Petitioning party (mom in this case)3. IF (and this is a BIG IF) Australia decides that the mom does in fact have a case : Court's may refuse to return a child to a Petitioning parent and that child's home country under the Hague Convention if it finds that "there is a grave risk that if returned child would be expose to physical and psychological harm or otherwise placed in to an intolerable situation."Interesting to note here that in Rydder v. Rydder, F.3d 369, 373(8th cir.1995), suggests that "specific evidence of potential harm" to a child as a result of separation from a primary care giver may constitute grave risk of harm under the Hague Convention. Separation from a primary care giver creates a risk of psychological harm.This is just one route to take IF they do in fact decide that she has a case. There are many lines of defence for not returning a child to the previous jurisdiction.http://www.hcch.net/index_en.php?act=conventions.text&cid=24To be safe, I would check this with a lawyer, but as far as I can see you are within your rights since you have Full Custody/Guardianship. As far as I know this gives you the right to determine the child's place of residence. You will have to respect the mom's right to access, otherwise she can fight to get her child back under the same Hague Convention. I am very interested to know what your lawyer advises you. Please let us know.Seoul Sister Quote Link to comment Share on other sites More sharing options...
ChrisV Posted February 22, 2006 Author Report Share Posted February 22, 2006 (edited) 1. You will be able to leave the country with your child without consent of the mother, since you do not need the permission of your ex to apply for a passport for your child. " In terms of South African passport regulations, the parent who has sole custody and sole guardianship can sign passport applications of their children on their own."Yes but for the Visa I need a fully detailed birth certificate (Not sure if they are going to allow me only signing) I am very interested to know what your lawyer advises you. Please let us know.I will have to do the lawyer thing as well. I will tel you know. Edited February 22, 2006 by ChrisV Quote Link to comment Share on other sites More sharing options...
Caroline Posted February 22, 2006 Report Share Posted February 22, 2006 Hmmm full abridged birth certificate can take a while. I used 'an agency' to do it for me. One child's didn't take long but haven't reccieved the other ones yet. I can't remember where I put the originals..... But we all know that home affairs is another story. Good luck Quote Link to comment Share on other sites More sharing options...
ChrisV Posted February 22, 2006 Author Report Share Posted February 22, 2006 I just phoned the www.vfs-au.co.za 011 447 8988 and they said if I have full custody then the mother doesn't need to sign for the visa I don't want to do it like this but have no choice. (Witout her permission) Quote Link to comment Share on other sites More sharing options...
Caroline Posted February 22, 2006 Report Share Posted February 22, 2006 Re the birth certificate:take your divorce order with you when you give in application for birth certificate (I always get confused between unabridged and ...full birth certificate? anyway as long as both parents names are on the certificate).The issue of custody and guardianship will matter when it comes to :-application for child's passport-consent for child to leave the countryonly if you have sole guardianship can you get the above without her signature. Even with sole custody you will need her signature for child's passport application.Even it you have sole custody you will still need the SA courts or the mother's consent to remove the child from RSA. But .. yip..lawyers good. Sometimes they are good to have.. (joking joking) Quote Link to comment Share on other sites More sharing options...
Guest Seoul Sister Posted February 22, 2006 Report Share Posted February 22, 2006 Hi Chris,That is a silver lining, hey ! (about the visa).. Doing it without permission isn't the best way, but sometimes it's the only way. Many moons ago, (8 years to be exact) we had to organize our full birth certificates within a couple of hours. ( I see you are in Centurion ) We went in to Home Affairs (what is it called now? Internal affairs ?) Anyway, went in to them in Pretoria downtown (or is it Tswane now ? ) bear with me, it has been a while... We filled in the forms, paid the money, but didn't hand the papers in, went up two flights of stairs with the filled in paperwork and the stamps we got downstairs, turned right, first door on the left, there were a couple of ppl who did full birth certificates (expedited process as we called them). We paid them a couple of bucks - can't remember how much now, and they did the certificates for us while we waited. Walked out an hour later with the full certificate...I am not sure whether they still exist or where they are now, but might be worth an investigation, could save you a lot of time and hassle ! Especially since you are not too far away from there.Just a thought.Glad about your bit of good news !Seoul Sister Quote Link to comment Share on other sites More sharing options...
sonnetjie Posted February 23, 2006 Report Share Posted February 23, 2006 Try bunnyhop Bunnyhop.co.za or call+2731 705 1189 they specialise in getting documents to you in record time. Unabridged birth certificate you name it. Quote Link to comment Share on other sites More sharing options...
ChrisV Posted February 23, 2006 Author Report Share Posted February 23, 2006 (edited) Try bunnyhop Bunnyhop.co.za or call+2731 705 1189 they specialise in getting documents to you in record time. Unabridged birth certificate you name it. Thanks I will Hi Chris,Doen die ma op die oomblik enige iets met haar reg tot toegang ? Sien sy die kind of 'n gereelde basis ?GroeteSS Ja sy sien hom elke tweede naweek en wanner hulle op vakansie gaan, sy is n baie goeie ma. Edited February 23, 2006 by ChrisV Quote Link to comment Share on other sites More sharing options...
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