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Question
Posted by: Chris | 2010/03/29

Changing of sole custody to joined custody

Good afternoon. At this moment my ex wife has sole custody over my two children age 12 and 14. She moved away without notifyng me. My daughter was chosen as a leader in this school and had to give it up after two months because her mother wanted to move - to a new province! There are a lot of examples where my ex wife does not consider the children in her decisions. I want to apply for joint custody so that she cannot make the choice by herself anymore. What is the differnece between joint custody and sole custody, will it be worth it to apply and what is the procedure? Thank you.

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Our expert says:
Expert ImageFamily law expert

The guiding principle in matters involving children is that the interests of the children are paramount. This is entrenched in the Constitution, section 28 of which provides that “a child’s best interests are of paramount importance in every matter concerning a child”. The Children’s Act (the Act) was promulgated to give effect to this constitutional imperative, section 9 of which echoes the constitutional injunction. Section 6 of the Act under the rubric, General principles, contains various guidelines and inter alia provides that –


“(2) All proceedings, actions or decisions in a matter concerning a child must—

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;”

You will need to approach the High Court on application to vary the terms of the current order of court and I suggest that you consult an attorney in this regard.

Bertus Preller
bertus@divorceattorney.co.za

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

2
Our users say:
Posted by: G-Dad | 2010/04/06

If she moved to another province, I guess that the a full investigation will have to take place and based on the FA and social workers reports the courts could make a order, there has to be very good grounds for the courts to change the custody status, lately the courts prefer the use of parenting plans where both parents has equal powers, with one parents place primary residence and the other parents removal access rights.

In your case you can try but I think you will waste your money for the simple reason that you will not be able to enforce your rights from such a distance, say you get equal rights and powers, how will you determine what school and church ect the kids go to, if you want joint residence then you has to live in the same town for it to be practical.

Should she refuse you access then you can get the courts to force her, I know in my case the courts wanted me to pay half the traveling cost, I had to convince the judge that she never ever contributed to the children financially and therefore should carry the traveling cost on her own which was granted.

You will have to proof that the mothers actions is not in the best interest of the children and that with the change of the custody status that you will be in a position to improve the children needs and that will be in the best interest of the children.

Reply to G-Dad
Posted by: family law expert | 2010/03/30

The guiding principle in matters involving children is that the interests of the children are paramount. This is entrenched in the Constitution, section 28 of which provides that “a child’s best interests are of paramount importance in every matter concerning a child”. The Children’s Act (the Act) was promulgated to give effect to this constitutional imperative, section 9 of which echoes the constitutional injunction. Section 6 of the Act under the rubric, General principles, contains various guidelines and inter alia provides that –


“(2) All proceedings, actions or decisions in a matter concerning a child must—

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;”

You will need to approach the High Court on application to vary the terms of the current order of court and I suggest that you consult an attorney in this regard.

Bertus Preller
bertus@divorceattorney.co.za

Reply to family law expert

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