Hi, my wife and I are getting divorced, but it's not final yet. She also made a rape case against me, that involves me and her daugter from her first marriage, which is also pending. We have two children together and my question is if I can get my children for the vacations. She refuses that I see them and I want to know if she can do that, because we have joint custody pending the divorce.
Is there currently a court order in place regulating your contact rights with your children?
No, there is no court order, just the case that's pending
If your divorce matter is already pending, I would suggest that you consult your attorney regarding the possibility of launching what is called an Application in terms of Rule 43, whereby your contact rights with your own children can be regulated until such time as the divorce is finalised. The same application can also make provision for the regulation of maintenance.
The pending criminal matter may be prejudicial to you if the allegations are left untested. I would hence further suggest that the matter regarding your contact rights with your children be referred to your nearest Family Advocate's office for investigation. Should they find no truth in your wife's allegations, their evaluation will be of great assistance in securing your contact rights in future.
The maintenance and joint custody was already resolved. What I want to know is if she can refuce to give the children to me for the holidays or not. Because of the case or for any other reason.
Is there any agreement regarding your contact rights with the children?
The agreement that was made, was that I pay the maintenance amount and have joint custody, I could see them whenever I want too. But then she made the case and now she refuces that I see them.
In the absence of specific guidelines (i.e. specific agreement regarding contact rights), the situation becomes difficult. I believe that you have been given joint parental rights & responsibilities, a concept which is not the same as custody.
Your wife may refuse you contact during the holidays and in the absence of a court order regulating your contact with the minor children, she would not be in direct contempt of an order. You may be left in the postition where you will have to approach the court for a decision regarding the holiday if she refuses.
I would suggest, if possible, that your contact rights with regard to the minor children be more clearly defined in your settlement agreement. The specified rights can be "including, but not limited to".
LLB (Pret). Extensive litigation experience in general civil & family law matters. Debt Counsellor.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).