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Question
Posted by: sharmank | 2011/01/27

help,child access

my husband has 2 boys one is 8 this year and is not mine,our boy is a year old.this man lives for his kids,from the day these boys were born he has been there,obviously he and the mother of the first child split but he has never even once not supported or not loved his son,he has been there financialy,morally,through sickness,happiness and first day of creche till now,he has been the soul provider for his 8 year old,despite all, he is prevented to see his son by this woman,she is bound to make my husbands life hell and she is succeeding,there are times he misses him he cries,he recently went to his son''s school to find out how he can pay fees every month to his surprise,school fees has never been paid since last year,he does not mind to pay it off even if he does not see his son,is there a way he can gain access without paying huge attorney fees?

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Our expert says:
Expert ImageFamily law expert

Your husband has automatic parental rights in terms of the children's act. To cut the chase short I suggest informing her by way of a letter what access you need with an invitation to undergo a mediation sesssion. Give her 7 days to accept or reject. If she rejects the proposal, lodge an application to court to obtain interim rights, pending mediation through the Family Advocate. Best would be to consult an attorney.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
E: bertus@divorceattorney.co.za
W: http://www.divorceattorney.co.za
Twitter: www.twitter/edivorce
Facebook: www.facebook.com/divorceattorneys
Skype: divorceattorney

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Our users say:
Posted by: FIO | 2011/01/31

To add to Bertus comment. He is entitled to full responsibilities and RIghts, but if a court order exists to the contrary, (as the child is 8 so I assume any arrangements etc were made befoer the Act was promulgated) he woudl have to apply to have the existing court order amended to reflect the provisions in the new Chidlrens Act.

Rights etc are only automatic if there is no existing order in place to the contrary.

Reply to FIO
Posted by: family law expert | 2011/01/29

Your husband has automatic parental rights in terms of the children's act. To cut the chase short I suggest informing her by way of a letter what access you need with an invitation to undergo a mediation sesssion. Give her 7 days to accept or reject. If she rejects the proposal, lodge an application to court to obtain interim rights, pending mediation through the Family Advocate. Best would be to consult an attorney.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
E: bertus@divorceattorney.co.za
W: http://www.divorceattorney.co.za
Twitter: www.twitter/edivorce
Facebook: www.facebook.com/divorceattorneys
Skype: divorceattorney

Reply to family law expert
Posted by: FIO | 2011/01/28

If they were never married, and no court order has ever existed, he is entitled to full responsibilities and rights as per section 21 of the Childrens Act.

In order to qualify for these rights he would have to fulfil the required cod=nditions stated in the Act. If he does fulfil those requirements, then yes, he can do as I have advised.

However, she can turn around and disagree that he qualifies for rights, in which case he may still go for mediation to determine this amicably, and failing that he can lodge an application to the courts for his rights.

In mys situation my son was born before the new Act was promulgated. My ex kept on refusing me contact, and doing all tings on her own, despite my contributions etc. I lodged an application for my rights, she wanted to oppose, but at last minute agreed to mediation. She refused to come to mediation, so I lodged my aplication again, At a round table meeting she finally agreed that I did qualify for rights, so that was settled. We then had to negotiate a parenting plan, and theonly way she woudl sign the plan was if I agreed to pay her the maintenance she demanded. I had no more money left to fight, so I signed.

I am now about to amend the plan, and have given her 14 days in which to agree or lodge objections, failing which I wil refer the matter for mediation, If that fails, I will take the matter to court. I was also not married when my son was born 4 years ago.

First thing in this case would be to determine whetehr or not she acknowledges his rights as per Section 21 of Act. If she doesn t then you mediate for this, which will result in either a court application, or the while matter being settled from rights to parenting plan.

But still apply for an interdict pending outcome of mediation, and note in the application that of paramount importance is the best interests ofthe child, not the needs/wants of mom or dad.

My ex kept on saying she doesn t have time for mediation etc. So I said to her that she would have to explain ina courtwhy she does not have time for her childs best interests. She has time for her holidays, evenings out for dinner etc, but not for mediation? Basically she could be said to be serving her own interests before those fo the child, which would look really bad for her in front of a judge.

Reply to FIO
Posted by: thanks fio but, | 2011/01/28

they never got married,can we do the same as u advise?

Reply to thanks fio but,
Posted by: FIO | 2011/01/28

By law she cannot prevent contact unless there is a court order limiting contact or giving her sole custody (under the old law).

What does their divorce agreement say? If, through the divorce agreement he is entitled to regular contact, he can go straight to the magistartes court and apply for an interim protection order preventing her from denying contact under the banner of parental alienation.

What he can also do is request, in writing to her, that the old order be amended to now comply with the current childrens Act, and draft a parenting plan through mediation, using Section 33 of the Act. If she refuses, he can then approach thew court and ask for an order compelling her to attend mediation. If this fails, then he can approach the court with a parenting plan he has drafted with the help of a mediator/professional, and ask for it to be made an order of the court.

First step, request mediation to draft a new Parenting Plan as per Section 33, and in line with the prescribed formalities in Section 34.

Take this request, have a certified copy made, and take it to the local magistrates court to obtain an interdict preventing her from witholding contact pending the outcome of mediation. I did this with my ex, and it worked.

Reply to FIO

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