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Question
Posted by: Mina | 2011/06/10

hELP

Hi

My boyfriend and I have recently broken up. We have a 2year old daughter together. He hasn''t been there half the time but it seems that he wants to take her away from me.

She is on his surname and his medical aid and this really stresses me out. He does not maintain further than this.

What can I do?

Thanks

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Our expert says:
Expert ImageFamily law expert

There is absolutely no way any court will grant an order giving your ex full parental rights inclusive of being the parent of primary residence, unless it is in the interest of the child to do so. Gathering from the facts you gave, I can see no reason why you should worry about the threat he has made. Both of you do have joint parental rights, but given the age of the child, I doubt whether he will get more than supervised access at this point in time. I would suggest that you lodge a care and contact dispute via the children's court and request that a parenting plan be implemented.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
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.

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Our users say:
Posted by: family law expert | 2011/06/12

There is absolutely no way any court will grant an order giving your ex full parental rights inclusive of being the parent of primary residence, unless it is in the interest of the child to do so. Gathering from the facts you gave, I can see no reason why you should worry about the threat he has made. Both of you do have joint parental rights, but given the age of the child, I doubt whether he will get more than supervised access at this point in time. I would suggest that you lodge a care and contact dispute via the children's court and request that a parenting plan be implemented.

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
bertus@divorceattorney.co.za

Reply to family law expert
Posted by: FIO | 2011/06/11

Legally he can take her, just as you can take her back, unless there is a court order in place. Protection in terms of Section 35 of Childrens Act unfortunately only pertains to situations where a court order exists.

If he has not properly maintained and contributed to the maintenance of the child, you could lodge an application denying him full responsibilities and rights. The fact that he pays medical aid will prbably be sufficient proof of his contributing towards maintaining child. You need to approach a maintenance court for a maintenance order.

In terms of him taking child away, has he threatened to do this? I suggest you approach the Childrens Court for assistance in makng a decision on what to do next. Usually they will order you to go for mediation ,or order an investiogation by social workers or Family Advocate, who will then make recommednations to the court. If he has threatened to take her away form you, also approach local magistrates court for a protection order preventing him from taking her from you pending the decision of the childrens court.

Family Law Expert here will probably be able to give better advice, but if money is an issue just ask Clerk of the Court to help you fill out the forms and provide the necessary information, evidence and affidavits.

Dont worry, the court will not allow him to take her from you, unless there is a very valid reason why she should be taken from you. At the end fo the day the court looks at what is best for the child, and unless one parent is deemed unfit or incapable of looking after the child, the child has the right to be looked after by both parents. The law is supposed to protect the childs rights as a priority before moms or dads rights.

Reply to FIO

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