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Question
Posted by: Unknown | 2010/11/18

Marriage - Divorce

Me and my husband have been marrid 5 years and living together 8 years. We have two children, one (7 years) from previous relationship and one (3 years) from present marriage.

Husband has threatened that if i ever left him, he would never let me see my 3 year old son ever again, and that he would take him away from me forever. Husband is an attorney, so am a little scared of him getting it right. Could this be the case.

I am a very good mother, and have never done anything to my kids to hurt, neglect, misuse, unlove them in any way.

Would he be able to take my son away from me forever and never let me see him ever again.

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Our expert says:
Expert ImageFamily law expert

Your husband sounds like a bully rather than like an attorney. There is absolutely no way, if you are a good mother, that he will be able to take your child away from you. The fact is, it is not about the parents, but about the children in divorce matters, i.e what are in the best interests of the children. in determining the what are the best interests of the child, the court will look at:

ections 7 to 10 of the Children’s Act deal with what constitutes the “best interests” of children.

7 Best interests of child standard

1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

a) the nature of the personal relationship between-

i) the child and the parents, or any specific parent; and

ii) the child and any other care-giver or person relevant in those circumstances;

b) the attitude of the parents, or any specific parent, towards-

i) the child; and

ii) the exercise of parental responsibilities and rights in respect of the child;

c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

d) the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from-

i) both or either of the parents; or

ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

f) the need for the child-

i) to remain in the care of his or her parent, family and extended family; and

ii) to maintain a connection with his or her family, extended family, culture or tradition;

g) the child's-

i) age, maturity and stage of development;

ii) gender;

iii) background; and

iv) any other relevant characteristics of the child;

h) the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;

i) any disability that a child may have;

j) any chronic illness from which a child may suffer;

k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

l) the need to protect the child from any physical or psychological harm that may be caused by-

i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

m) any family violence involving the child or a family member of the child; and

n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

(2) In this section 'parent' includes any person who has parental responsibilities and rights in respect of a child.

Bertus Preller
Family Law Attorney
Abrahams and Gross Attorneys
www.divorceattorney.co.za
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: family law expert | 2010/11/20

Your husband sounds like a bully rather than like an attorney. There is absolutely no way, if you are a good mother, that he will be able to take your child away from you. The fact is, it is not about the parents, but about the children in divorce matters, i.e what are in the best interests of the children. in determining the what are the best interests of the child, the court will look at:

ections 7 to 10 of the Children’s Act deal with what constitutes the “best interests” of children.

7 Best interests of child standard

1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-

a) the nature of the personal relationship between-

i) the child and the parents, or any specific parent; and

ii) the child and any other care-giver or person relevant in those circumstances;

b) the attitude of the parents, or any specific parent, towards-

i) the child; and

ii) the exercise of parental responsibilities and rights in respect of the child;

c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

d) the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from-

i) both or either of the parents; or

ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

f) the need for the child-

i) to remain in the care of his or her parent, family and extended family; and

ii) to maintain a connection with his or her family, extended family, culture or tradition;

g) the child's-

i) age, maturity and stage of development;

ii) gender;

iii) background; and

iv) any other relevant characteristics of the child;

h) the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;

i) any disability that a child may have;

j) any chronic illness from which a child may suffer;

k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

l) the need to protect the child from any physical or psychological harm that may be caused by-

i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

m) any family violence involving the child or a family member of the child; and

n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

(2) In this section 'parent' includes any person who has parental responsibilities and rights in respect of a child.

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

Reply to family law expert
Posted by: FIO | 2010/11/18

There is absolutely no way he can take children away from you, impossible. The law will not allow, even if he is an attornay. He is using this as a method of scaring you. I know of cases where we are mediating between attorneys and advocates. They are not above the law, so dont worry one bit!.

Only way you could lose kids is if he can prove beyond doubt that you are unfit mother. There us a saying in court - he who alleges must prove. Failing that, the allegation is chucked out.

Dont let him intimidate you, ok, he is not above the law and the lasw will protect your children from such threats.

Reply to FIO

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