I am hoping you might be able to offer...

Asked by charl on 15-04-2019 15:41:11
Question posted in the General Law category relating to Western Cape
Question value: R 300.00

Hi there

I am hoping you might be able to offer me some legal advice on a very tricky situation.

My girlfriend (39) and I recently decided to give our relationship another chance after approximately six months apart. We have, in the past, dated on and off but, in each instance, decided to terminate the relationship for a variety of (standard) reasons.

The complication is that my girlfriend has been divorced for around five years now, but has an 8-year old son with her ex-husband. Upon learning that we have decided to once more persue a romantic relationship, he immediately turned hostile towards my girlfriend, threatening over WhatsApp to have her son removed from her custody if she had anything to do with me, as well as attacking her general character, as well as mine, despite never having had a conversation with me.

Whether through jealousy or some other petty and nefarious agenda, he has vowed to have her custodial rights terminated, saying that I am bad for her and therefore bad for the wellbeing of the child. My girlfriend has, in the past, relied on her ex-husband in times of emotional turmoil, and he is threating to use evidence of this as grounds for having the child removed from her custody.

A few things to note:

-The child is thriving and performs exceptionally well at school

-His mother ensures that he is bathed, fed, taken and fetched from school, groomed, nurtured, played with and provided with the most perfect example of a safe and loving home environment that I have ever seen

-I have an extremely good relationship with the child, and he often asks when I am coming to visit, or when they can visit me, even saying that I feel like his "step dad"

-My girlfriend is a recovering alcoholic, but religiously attends AA meetings and has not touched alcohol in almost a year - this is one of the issues the ex-husband has threatened to use as evidence of why she is unfit to take care of the child

-She has seen a clinical psychologist for the past 10 years, and regularly sees a psychiatrist for bipolar mood disorder, for which she takes daily medication

-Coming to me, I am a university graduate, have a good job and stable income, no criminal record, am not physically or verbally abusive, and have never abused alcohol or drugs. I have, however, been hospitalised twice for major depressive disorder, for which I take daily medication

My question is: does her ex-husband have any legal grounds for having the child removed from my girlfriend's custody? Does he have a case, especially considering that the "evidence" he claims to have is nearly a year old? What legal recourse do we have in this regard?

Your advice would be greatly appreciated.

Regards,

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Answer to the Question

Posted by Att. Patrick on 16-04-2019 07:47:02

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

The first thing that your girlfriend needs to remember is that there is no such thing as a custody fight anymore. Both parents have custody of the child, and there are extremely limited circumstances where a court of law will take a person's custody away. Very limited! The issue now is defined as "who is the primary care-giver".

In this regard the father is certainly entitled to approach the children's court, the high court, or the family court to apply for him to become the child's primary care-giver, and he can use whatever evidence he has in order to advance his case. Your girlfriend can challenge the evidence and her job is to explain it away. 

Also remember that the over-riding factor which the court will apply is "the best interests of the child".

I think that the court will take a dim look on the father if he uses all of this evidence now, which (as you say) is over a year old, in support of his argument that your girlfriend is not able to look after the child. Why did the father wait a year before applying to court? If he was really worried, he should have applied to court a year ago when all of this evidence came to his attention.

Further, a court will often appoint the Family Advocate to investigate the matter and interview the child and prepare a report for court explaining his/her recommendations. The court relies on this report a lot.

The court also understands that people are people, and history is history, and a court will not allow events which happened over a year ago to cloud the issues now. A court will readily accept that circumstances have changed, and that at present the mother (with your support) is the best place for the child to be. 

Taking into account your circumstances, and your girlfriend's circumstances, I honestly don't think that you guys have any issues or that there is any serious risk that the father will be successful in his application. 

He will however be able to use the evidence that he received from your girlfriend. Perhaps she should not readily rely on his support in the future again. 

Your legal recourse would really be limited to defending the father's application. Explaining to the court that it is NOT in the child'e best interest if the father became the primary care-giver. Sure, reasonable access. Sure, visitation rights. Sure, maybe a weekend here and there. But NOT primary care-giver, especially if the child is still young.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 18-04-2019 08:08:24

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