National

Single dad victory

Brian wins joint custody of his beloved son Seth in a landmark judgment for all unmarried fathers

November 25, 2003 Edition -1

Gill Gifford

A traumatic battle for the right to see his child has ended in a landmark ruling for an unmarried father who has won joint custody and joint primary residency for his son.

And it follows that the rights granted to him will make future battles by other unwed dads a bit easier.

The man, who cannot be named so as to protect the identity of his 2-and-a-half-year-old, will be allowed to have the boy live with him every second week, after the Johannesburg High Court ruled this was in the child's best interests.

"Brian" is a single man, now 30 years old, who met "Robyn" a few years ago.

"It was a whirlwind romance, and we got engaged. Then she fell pregnant and we bought a house together, and things seemed perfect," said Brian, an information technology network administrator.

But on September 18 last year he arrived home from work and found that Robyn had disappeared along with baby "Seth", who was just over a year old. She left a letter containing contact details for her father and lawyer, and brief reasons why she wanted to leave.

And so began what Brian now terms his 13 months of hell.

"My life was basically trashed. It was after 6 in the evening, so I tried going to the cops but there was actually nothing I could do about it."

The following morning he went to the Benoni Magistrate's Court, where he was given contact details for his attorney, Annie Steijn.

She contacted Robyn's lawyer and arranged for Brian to be allowed to see Seth at the East Rand Bunny Park that weekend.

"That day he looked so small and frail. His voice was hoarse from crying and he looked completely out of it," said Brian.

Two weeks later, the couple and their legal counsel had a meeting, during which it was agreed that Brian would be allowed to see Seth every Saturday between 8am and 5pm.

He also could phone him. No overnight visits would be allowed.

Brian would have to pay maintenance and was not allowed to know where Seth and Robyn were living. She had subsequently moved in with another man.

Arguments, disagreements and horrible encounters followed, during which Seth and Brian suffered. Seth would scream and have to be prised away from his dad at the end of every visit.

Brian, convinced his son was being neglected and badly treated as he watched the child lose weight, spent days on end waiting at social services for help.

Robyn then decided to bar him from seeing his child at all, prompting him to file an emergency application at the Johannesburg High Court, where he was put in contact with the Family Advocate's office.

"My lawyer told me that in almost 99% of cases the judge followed recommendations by the Family Advocate, so I went to see advocate (Chris) Maree," Brian said.

As is common practice at the Family Advocate's office, Maree did most of the investigative work himself, conducting home visits and checking up on Seth at school.

"It was frustrating to see what (Seth) was going through," said Brian. "But I couldn't stop it, and everything that happened was evidence I needed. It's a moral dilemma.".

The case, receiving unusual preference on the backlogged court roll, went to trial earlier this month. The matter was heard by Judge Chris de Jager, with Maree recommending that Brian be granted joint custody of his son and full residency.

Judge De Jager ruled that Brian be awarded joint custody and joint residency, with the couple having to return to court for another ruling when Seth turned 6.

Brian's victory is good news for other unwed dads as well as Hindu and Muslim husbands whose marriages are not recognised by law.

Maree described Brian's case as unique, with his win forcing the law "not to discriminate in favour of marriage", and with natural fathers being given their rights.