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Question
Posted by: Charney | 2010/10/18

My X threatning me with custody.

Around August my x and myself went to court where he was given a reduction in maintenace from R 5000.00 per month to R 2000.00 per month for our two boys. He came to work a little while after that and told me that he lied to the courts and he earns alot more that that +- R 35 000.00 and month and not the R 7500.00 he stipulated to the courts and told me i will never be able to prove it and laughed at me and left.

He now wants me to collect the kids when he has them on his weekend but i have told him that i cannot afford to drive 120km on a sunday to fetch them.

He has now said that the courts rules are that i have to fetch them as it is both our responsibility to fetch them and drop them at his home.

He has told me that if i don''t i will regret this as he will sue me for custody of them i have sole custody at the moment.

I am petrified of this man as it is how do i handle this?

Is it my responsibility to fetch them and drop them?

Please help.

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Our expert says:
Expert ImageFamily law expert

There is no law that stipulate that you are obliged to fetch the children. Secondly, there is no way that he will be able to get sole care over the children, unless the court rule that it will be in their interest. It seems that your ex is abusing you emotionally.


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

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Our users say:
Posted by: family law expert | 2010/10/19

There is no law that stipulate that you are obliged to fetch the children. Secondly, there is no way that he will be able to get sole care over the children, unless the court rule that it will be in their interest. It seems that your ex is abusing you emotionally.


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

Reply to family law expert
Posted by: FIO | 2010/10/18

Unless it states specifically in your diovorce agreement that you must share these responsibilities, there is little you can do. But having said that, the fact that he has been doing the dropping off for a while would indicate that he has for a long time acceted this responsibility, so why the change now? The courts do not just change, so he is speaking crap about rules having changed. The law has changed, but a change in the law does nto automatically change a divorce agreement or order. He would have to apply to court for things to change.

If you do not fetch the kids, its appears that you have reasonable grounds for not doing so. In the agreement the kids are to come back to you after weekend, so if he knows this why is he refusing to return them? You have a valid reason for not being able to fetch them, does he have a valid reason for not being able to bring them back? Each parent in terms of the law is supposed to be acting in the best interests of the child, so it would be hard for him to prove or motivate that not returning the kids, disrupting their routine etc, is in their best interests. A good attorney woudl have him for breakfast in court.

Also, if he cannot afford to pay maintenance, where will he get the money to pay for a legal case against you? So much money is spent by parents fighting, when that money could be put to good use in providing fro children.

If he does nto return thekids after a weekend, and you truly cannot afford to fetch them, go to court and get an interim interdict forcing him to return the kids. Its easy to do, but be sure that you cannot afford to fetch them.

Re maintenance, the only way to get around this would be to get some sort of evidence to refute his income claims. Failing that he could say anything to the courts. Evidence rules, and in the absence of evidence the court cannot force him to pay more.

So, dont worry, he cannot sue you for custody just because you are unable to fetch the kids. Any self respecting attorney woudl tell him this, but then again, attorneys make money out of fights, so he may think he can, but no way.

Your only recourse int his case would be to let him file for custody or whatever he wants, and then you refer the matter for mediation as required by the Childrens Act, and in mediation the matter will either be resolved, or the mediator will write a report that will go to the court to help the court make a decisiopn,. In mediation it will become clear who the trouble maker is without the mediator having to say specifically. The facts will speak for themselves, which is not always the case when matters go straight to court through attorneys. But with the new Act, matters cannot just go to court anymore.

So, sit back, and let him threaten you and try whatever he wants, its all big talk with little support behind it. Tell him he has been doing it for all this time (dropping kids off),and any change will not be in the best interests of the children, while also stating that due to reduction in maintenance you cannot afford to fetch kids. Have a written record of this to cover you if this ever does go to court. Suggest mediation to resolve the dispute. Again, keep records of all correspondence.

Then, if he tries to go to court you are covered.

Also, if he refuses to bring children back after his weekend, go straight to magistrates court and get an interim interdict against him (very easy and costs nothing) forcing him to return the kids as per normal routine. All you need to do is expain the situation in your application, and he will have no choice but to comply whatever the court rules. Once again, I cant see how a court can force you to do what you areunable to do, and this in itself would not be enough grounds for him to apply for custody. By the way, there is no such thing as custody anymore, only parenting rights and responsibilities which may either be full, or specific as ordered by a court.

Reply to FIO

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