SOUTH AFRICA: McBride 'kidnapping' highlights custody wars
From http://www.iol.co.za/index.php?click_id=15&art_id=ct20040409232620856K35135&set_id=1
McBride 'kidnapping' highlights custody wars
April 09 2004 at 11:26PM
By Lauren Mannering
Single parents who want to have custody of their children who are not living with them must go through legal channels to do so.
This is even so in situations when the children are allegedly being abused.
This has been highlighted by events this week when charges were laid against Ekurhuleni metro police chief Robert McBride for allegedly kidnapping his young daughter. It is alleged that McBride's actions were prompted by claims that the girl was not being well looked after.
'It is the natural thing to do, but you are failing to comply with a court order'
But what does the law say in cases where one parent alleges that another is abusing their child? A parent who wants to remove a child from an allegedly abusive partner or former partner must obtain a court order.
Ronnie Naidoo, spokesperson for the South African Police Services, said parents naturally want to intervene in situations where they feel that a custodian parent is not looking after the child properly.
"It is the natural thing to do, but you are failing to comply with a court order," he said this week.
"You can't take the law into your own hands," said Deanne Kahn of Werksmans Attorneys. There are certain procedures that have to be followed, she said.
The law differs in terms of married and unmarried parents.
'You can't take the law into your own hands'
In the eyes of the law, divorced and unmarried couples have different rights in regards to their interactions with their children. In cases of abuse both can act on behalf of the child provided they go through the correct procedures.
Married or divorced fathers have automatic rights, rights of custody, guardianship, and access as regards their children. In order to get their children out of an abusive situation they would have to apply for a court order to change the custody of the child, said Kahn.
According to Kahn, as the law currently stands, unmarried fathers have no rights in regards to their children and have to apply to the court for these rights in terms of the Natural Father of Children Born out of Wedlock Act.
Naomi Koutoulogeni, the assistant director in the social services department that deals with child-related issues, said that "the correct procedure would normally be to go to the child protection unit (CPU) at the nearest police station".
If they are convinced, the child will be taken away and an inquiry will be undertaken by the CPU.
Sipho Skosana, a family law consultant at the People's Family Law Clinic in Johannesburg, said that the parent without custody of the child "does not have a right, legally speaking, to take the child with him or her".
His advice to parents that find themselves in a similar situation is to "act swiftly. Go to the police ask for the CPU to intervene in the matter.
"Once it has been determined that the child is in an abusive situation and there is enough evidence to prove so, the child will be taken to a place of safety."
The child will remain "in a place of safety while the allegation is being investigated" and while custody is being determined.
"A place of safety could be an institution or a relative - anywhere away from the abuse," said Naidoo.
The parent can then apply for custody of the child, and, according to Skosana, "because of the abuse the court will recommend that the other parent be granted custody of the child".
END
|
