Mornings, I am 31 years old and have a d...

Asked by lostandfound on 08-01-2021 07:36:35
Question posted in the Family Law category relating to Western Cape

Mornings, 

I am 31 years old and have a daughter turning 7 in November. We broke up with her mother 5 years ago.

I had been with my ex for 10 years, and during the last 3 years we were staying together, thats when our daugher was conceived. 

I have two qualifications, Geology and recently finished Civil Engineering at UCT, I've starting working again now in January. 

My daughter has been staying with her grandmother from her mothers side for the past 6 years. She has been giving me and my family difficulty to get involved with the baby, but each time I was home I focused on spending time with my duaghter. I have now completed my studies and wish to take my daughter so she stays with me. 

Her mother is a qualified electrical engineer working in Cape Town, I too am working in Cape Town. The mother is however oppressed by the grandmother, I believe she has developed an unhealthy attachment to the baby, and so she just wants to hold on to my daughter. Any decisions I make with the mother, the granny shuts down and my ex ofcause listens to her mother.  

My question is, if the mother is not commiting to taking our daughter (I dont mind the child staying with her) can I take the child to stay with me in Cape Town where she will be close to her mother. My plan is that she gets her own room and will attend at a better school here in Cape Town. She will also have better support from both parents. 

At the moment the grandmother wants the child to stay with her until she finishes primary school and possibly then attend boarding school. I am completely against such an idea and would like the child to grow under parents guide and watch. 

How do I go about taking my daughter, I am no longer happy for her to stay with the granny and doesnt seem like the mother will take her any time soon.  

Please advise. 

Zwane

Information Requested by Lawyer

Posted by Att. Patrick on 08-01-2021 08:48:19

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.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 08-01-2021 09:02:16

Hi again Zwane,

I'm sorry to hear about your story. 

It sounds to me as if your ex (together with your ex's mother) is the factual primary caregiver to your daughter, looking after her and her needs on a day to day basis, and that you have fallen into more of a secondary caregiver role. There's nothing wrong with this, but it sounds as if this is what has happened. 

Given that this is the status quo, and has been for the past 5 years, it is going to be quite hard to change this situation. You have basically consented to your ex being the primary caregiver to your daughter, and you have consented to the child living with your ex's mother.

There are however 2 ways to change this - 

1) By agreement with the mother (i.e. with her consent); or

2) With a high court order if you can't reach an agreement. 

I assume that you are living in Cape Town, as is your ex, and I assume that your child is living in another city with your ex's mother. If that is the case, then this is a "plus" for your argument for the child to come live with you. i.e. to be closer to you and your ex.

You must realise that what a court will look at is "what is the best interests of the child". A court normally holds that the best interests of the child is to live with the child's parents, however this could fall away if the parents are abusive or not able to look after the child.

The Court will weigh up whether it is the best interests of the child to live with the grandmother, in a city away from the parents, but with her friends, VERSUS living with the parents (either you or the mother). I think that you have enough to convince the court that it is in the best interests of the child to live with you. 

But this does mean a court application, or at least trying to get the mother to agree to this. 

What you can't do is to move the child without the mother's permission. You can't take the law into your own hands and simply "go fetch" the child. No, you will need consent or a court order. 

For the granny to say that the child must eventually go to boarding school, rather than to live with you, does not bode well for the granny's argument. It actually supports your argument.

I think that you should approach a family lawyer and ask him/her to assist in mediating, or negotiating, an agreement with your ex as to your child. If this doesn't work, you must then apply to the high court for an order that the child should come live with you.

I can't refer you to a specific lawyer, but I can direct you to Search through a list of 303 Law Firms, Lawyers and Attorneys who operate in Access to Children Practice Area or Search through a list of 483 Law Firms, Lawyers and Attorneys who operate in Family Law Practice Area where you can find a list of qualified lawyers in your area who will be able to assist you further!

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.

Information provided by client

Thank you for the response and for being honest.

Just to better understand, yes I was fine with the child staying with the granny the past 5 years as I was finishing off my studies. Even though there were things making me unhappy, I believe it was best for the child to remain with her and be in a stable environment.

Does the grandmother have the right to deny me requesting the child to stay with me? surly since the mother is being controlled by the granny to a point where I believe the child is not getting the best opportunities and education she can get from both parent. I have text messages where the mother and I agree on something regarding the child, then moments later she changes her mind and even begs me to support her. By then clearly the granny has bashed her. This happens to a point where the mother texts me and say "If I could I could sell my soul, I have not rested this whole weekend" I have such texts

Other issues such as talking down my family directly to the child. I have been patient for the child, I have always been involved in her life and have a super relationship with her. Do I not have grounds and rights as a parent to request the child without direct approval from the mother? as the mother will obviously be influenced by the granny. Is the child not in a neutral space and when one of us as parents are ready?, take her. Yes you are correct, the child stays in KZN and both parents in CPT.

Answer to the Question

Posted by Att. Patrick on 08-01-2021 09:38:19

"Just to better understand, yes I was fine with the child staying with the granny the past 5 years as I was finishing off my studies. Even though there were things making me unhappy, I believe it was best for the child to remain with her and be in a stable environment." So then your case is good because you can explain to the court that your circumstances have changed and that you are now in a position to look after your child directly. That it was then in the best interests of the child to live with the granny, but now you can do this yourself. This is good for you!

Q: Does the grandmother have the right to deny me requesting the child to stay with me? --> No, not directly. Her argument would need to be "it is in the child's best interests to remain with me". But as I said before, a court would rather want a child living with the child's parents, unless there is something wrong with the child's parents. 

"I have text messages where the mother and I agree on something regarding the child, then moments later she changes her mind and even begs me to support her." --> So if you go to court, you would use this as evidence that the granny is perhaps forcing your ex to change her story.

Q: Do I not have grounds and rights as a parent to request the child without direct approval from the mother? --> No. Either by consent or with a court order. You can't simply take the child.

Q:  Is the child not in a neutral space and when one of us as parents are ready?, take her. --> No, the child is "settled" and is living with the granny with both of your consent (acceptance). If you want to change this, you either need consent or a court order.

Answer Accepted

This answer was accepted on 09-01-2021 12:34:42

Information provided by client

Thank you very much, I now am more clear on how best to proceed. Your help has given me peace in my heart.

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