Posted by: HW | 2010-06-17

New Children''s Act and Sole Custody awarded prior to its Introduction

If I was awarded sole custody in Feb 1995 of my two children, prior to the introduction of the new Children Act (2005 and Amended 2007), does the implementation of this Act now mean that my sole custody status is now nil and void and that both parents have a " legal guardian"  status over the children i.e. both parents can act legally on behalf of the children, make decisions on behalf of the children, without consulting the other? Surely the parent with residence/care rights ie. myself, who the children stay with, still has the overriding responsibility to make decisions about the children''s education and wellbeing without interference from ex-husband. I am remarried and currently live in a different town to my ex-husband. My children are now 13 and 14 years of age and he is trying to influence them to come and live with him and change schools back to their old schools. This is all being orchestrated behind my back. What position does this put me in, as I am concerned that changes, if the new law allows him to do this, will negatively affect my children, as well as the relationship that I have with them. Dad is seen as the " good guy"  and Mom is the bad one here.

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Our expert says:
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The position is that any change to the existing court order must be by way of a substantive application to court on affidavit to vary the existing order. It does not flow automatically that the new Children's Act overides a Settlement Agreement that was made an order of court.

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Our users say:
Posted by: HW | 2010-06-19

Thank you for your responss, Family Law Expert. Would it mean that the ex is contravening the settlement order, in that he only has access rights, and he is currently interefering and influencing them to return to their old schools as they are now going to or in High School, and in so doing this, he sees a way that he can get them to live with him. What actions can I take, if any, to prevent this influence, as in the long run this could have negative psychological effects on my children, and also negatively affect my relationship with them. Moving away has not negatively affected the relationship with their father - he has them every holiday and speaks to them every night and they have a good relationship with him. In fact, it has probably improved, if anything, as there were problems when we first got divorced and were living in the same town.

Reply to HW
Posted by: family law expert | 2010-06-19

The position is that any change to the existing court order must be by way of a substantive application to court on affidavit to vary the existing order. It does not flow automatically that the new Children's Act overides a Settlement Agreement that was made an order of court.

Reply to family law expert
Posted by: G-Dad | 2010-06-18

What ever was ordered before the new child act is still valid and can only be changed by the high court, the new law can not change a court order.

Reply to G-Dad
Posted by: FIO | 2010-06-17

As far as I am aware, if an existing court order is in place, this does not suddenly become null and void. What it means is that the ex can now aply for his rights and responsibilities in terms of the new Act.

The new Act affects primarily unmarried fathers, and means that those who do not have any rights, or have no court order in place, automatically gain rights, but these rights have to still be made an order of the court.

The problem with the Act is that it states parents have equal rights, but it does not give any indication of how those rights are to be exercised. What it rather states is that where there is any form of dispute over rights etc, then mediation must take place, or an application submitted to court.

If there is no dispute, then a parenting plan must be drafted and signed, which is then either submitted to Family Advocate for registration for it to become a legally binding contract, or made an order of the court.

I have just discovered in my case that as much as I may have rights as an unmarried father where no existing court order is in place, but with a parenting plan in place, for some unknown and unfair reason, I still have to apply to High Court for Guardianship. So my parenting plan gves me contact etc, spells out how we are to raise our son, co-parent etc, but stops short of giving me guardianship over my own son. A ridiculous shortcoming, but none-the-less a reality.

So I reckon that the only time things can change in your situation is if he applies to court for a change in the order, otherwise all else stays in place.

Reply to FIO
Posted by: HW | 2010-06-17

Sorry, and yes they do have a good relationship with their father. Funny enough it has gotten better since we moved away. There were problems in the beginning when he had them for weekends and 1 night during the week. They currently enjoy going down to see him in the holidays and speak to him every day on the phone. The problem is that he won''t leave it there and respect his contact rights. He can see that the children are doing well and that they have adjusted to their new life, but he wants more. So he interferes in their upbringing by telling them that they now have a right to make their own decisions and they don''t need to respect that I have been given custody of them. As long as they challenge this as children, he sees a way to get them back.

Reply to HW
Posted by: HW | 2010-06-17

Hi Anon. I got sole custody. Perhaps one must leave this one to the experts to answer. It is rather tricky and I don''t want to see harm done to my children by creating expectations about moving towns and schools when moving could be detrimental to them. I don''t have the answers, but know that I want what is best for them. Also right now there is no equal sharing of the children''s costs. My new husband and I contribute as much as 70% towards the children''s costs. Changing towns doesn''t change the cost of children, so I don''t want to be in a position where I pay most of the costs, but they live with their father - this can hardly be seen to be equitable, when there is no real reason to move in the first place, except that he has created expectations and brainwashed them.

Reply to HW
Posted by: anon | 2010-06-17

equal rights and responsibilites, but that doesnt mean you have joint custody and you say you live in a different town. he really cannot do much here as i have just been through a similar scenario. the court order remins as it is. do the kids have a good relationship with the dad? another thing to remember the most important thing here is best interests of the children. he cannot simply JUST up and move them if this is not in their best interests! but lets see what the expert says. good luck! are you sure you were given ''sole"  custody, not just custody, big difference.

Reply to anon

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