July 7, 2012
What are your rights if you live on one continent and your ex wife (or girlfriend) and your child live on another? In certain circumstances, what follows applies equally to fathers of children born out of wedlock.
As is spelt out in the Children’s Act 0f 2005 (the Act) ‘…in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied…’
The father of a child whose son lives in another country enjoys what are called ‘full parental responsibilities and rights’ in respect of the child. These include the right to be involved in his day to day upbringing, his care and to maintain contact with him.
The Act contemplates the situation where the parents of a child live on different continents. It prescribes what factors must be taken into account in these circumstances so that the best interests of the child standard is applied. These include:
o The capacity of the parents to provide for the needs of the child, including emotional and intellectual needs;
o The likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from a parent;
o The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parent on a regular basis;
o The child’s physical and emotional security and his intellectual, emotional, social and cultural development;
o The need for a child to be brought up within a stable family environment;
o Guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
o Guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
o Maintaining a sound relationship with the child.
The reality may be that you live and work in (say) Australia and your ex lives and works in South Africa. On that basis you are likely to see your son only three weeks per year. The result is that you miss out on his development (that new tooth, haircut and soccer kit). Applying the best interests test it is essential that you speak to your son over the phone regularly and that your ex keeps you up to date with all significant events in your son’s life. There is, of course, no substitute for real visits but these chats and updates could sustain father and child in between their face-to-face visits.
On that basis (and in an ideal world), you should try to get your ex to co-operate in the following respects:
o As you live in Oz it is in the best interests of your son to supplement periodic in-person visits with you through contact with your son via telephone, fax and web-based communication by means of camera-computer technology and regular emails;
o You should have liberal telephone privileges and Internet access to your son during reasonable hours. Depending on his age your ex should assist your son when you and the child participate in video conferencing, telephone calls or the exchange of emails;
o Until he can read and write, your ex should undertake to send regular emails to you on behalf of your son and to print all emails and faxes sent by you to the child. You ex should shall keep these in an appropriately marked folder and read them to your son whenever received and when asked to do so thereafter;
o Your ex should encourage communication between father and son on your son and your respective birthdays, on Fathers’ Day and Christmas day (unless any of these days coincide with your contact time with the child);
o You should have all reasonable contact with your son provided that such contact shall be exercised in his best interests and shall create the minimum degree of disturbance to his routine, educational and necessary extramural activities. The dates and times of personal visits shall be agreed upon by the parties to suit both parent’s work schedules;
o The parties must agree to any changes in schooling, extracurricular activities, or religious instruction and to any non-emergency medical care;
o Your ex should keep you informed of the identity of the child’s teachers, day care providers, medical providers, psychiatrists, psychologists or mental health counsellors;
o Your ex should inform you of any of your son’s school, church or extracurricular activities to which parents are invited. If you cannot attend your ex should take digital photographs of the event and email them to you. This shall apply to your son’s birthday parties as well;
o Your ex should inform you in advance of any extraordinary medical and other treatment necessary for your son and keep you fully up to date with all developments concerning the child’s well being;
o Your ex should inform you of any changes in her physical address or of any changes in your son’s living environment (such as your ex’s getting re-married or setting up home with a partner);
o Failing agreement between them the parties accept that court proceedings are detrimental to the best interests of the child, are destructive of the relationship between the parties and the child and litigation and threats of litigation should, where possible, be avoided. Accordingly the parties shall use their best endeavours and shall seek to resolve any differences and/or disputes between them in relation to the child, in a friendly and civil manner and if necessary, the parties shall have meetings with a view to resolving such disputes. If the parties cannot agree upon an area of dispute (such as a modification of the child’s schooling, extracurricular activities, or religious instruction or to any non-emergency medical care) they agree to mediate the dispute and to share the mediator’s fee equally;
o Obviously, the arrangement between the parents may change from time to time. To ensure that the best interests of the child is the paramount concern in all matters affecting the child, the parties will remain entirely flexible regarding parental responsibilities and rights and care of the child and contact with him.
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