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Question
Posted by: HW | 2010-06-21

Remedies if ex is in breach of a Court Order

Thank you for your response to my question on the new Childrens Act previously , Family Law Expert. If the new Children''s Act doesn''t affect an existing court order, would it mean that my ex is contravening the settlement order, in that he only has access rights and I have sole custody of the children. He is currently interfering with the decisions I am making for the children i.e. currently influencing them to return to their old schools in their old home town, as they are now High School age, and in so doing this, he sees a way that he can get them to live with him and he is encouraging this. 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 who are both doing very well at school, and also negatively affect my relationship with them in that I would now only have access to them and the other parent gets to make the day to day decisions for them practically speaking. Their dad is not remarried and currently has an unstable relationship with his girlfriend. Moving away has not negatively affected the relationship with their father although they miss him - he has regular access to them, seeing them every holiday and speaks to them every night. They have a good relationship with him. In fact, it has probably improved since moving away, if anything, as there were problems when we first got divorced and were living in the same town. On more than one occasion he would return the children to me during his access period - granted they were younger than now (13 and 14 years of age now).

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Our expert says:
Expert ImageFamily law expert

The custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. The right to decide all questions of education, including the right to decide which school the child shall attend, will be the decision of the custodian parent. As holder of custodial rights, the custodian parent is in terms of s 30(2) of the Children's Act 38 of 2005 entitled to act without the consent of the other parent.

If the custodian parent is obliged to give due consideration to the views and wishes of the non-custodian parent before coming to a decision concerning the child, he or she is in no way bound to give effect to the non-custodian parent's views and wishes. Once he or she has given such consideration, he or she may act independently. Moreover, failure to give consideration to the views and wishes of the non-custodian parent, and failure to inform him or her of the decision in terms of s 6(5) of the Act, do not in themselves render the decision made by the custodian parent void or invalid - the decision is subject to review, the determining factor being whether or not the decision is in the child's best interests. So by interfering he might violate your custody rights.

Bertus Preller
Family Law Attorney
KWJ Inc.
info@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: Nic | 2010-06-22

What if the " primary caretaker"  moves to another province and in doing to violates at least 6 stipulations of a court order?

She refuses to give an address (contravening the Children''s Act) and poisons the 5 year old child''s mind against the other parent.

Cannot ask for a PO as I dunno the address.
SAPS is draging their feet in the investigation of a contempt of court charge (did not allow me to lay a charge of kidnapping) and after 3 weeks still does not have her address.
Her lawyer refuses to give me the address as well

FA''s office says there is no immediate remedy.

In the meantime my child and I suffer.

The system SUCKS !!!

Reply to Nic
Posted by: HW | 2010-06-21

Thanks, Bertus. Your views are much appreciated.

Reply to HW
Posted by: family law expert | 2010-06-21

The custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. The right to decide all questions of education, including the right to decide which school the child shall attend, will be the decision of the custodian parent. As holder of custodial rights, the custodian parent is in terms of s 30(2) of the Children's Act 38 of 2005 entitled to act without the consent of the other parent.

If the custodian parent is obliged to give due consideration to the views and wishes of the non-custodian parent before coming to a decision concerning the child, he or she is in no way bound to give effect to the non-custodian parent's views and wishes. Once he or she has given such consideration, he or she may act independently. Moreover, failure to give consideration to the views and wishes of the non-custodian parent, and failure to inform him or her of the decision in terms of s 6(5) of the Act, do not in themselves render the decision made by the custodian parent void or invalid - the decision is subject to review, the determining factor being whether or not the decision is in the child's best interests. So by interfering he might violate your custody rights.

Bertus Preller
Family Law Attorney
KWJ Inc.
info@divorceattorney.co.za

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