Judge refers cus­tody bat­tle to US au­thor­i­ties

Weekend Argus (Saturday Edition) - - NEWS - FA­TIMA SCHROEDER

IN AN un­usual move, a Western Cape High Court judge has re­ferred a dif­fi­cult child cus­tody bat­tle in­volv­ing par­ents married only in terms of Mus­lim rites to au­thor­i­ties in Ohio, US, where the child was born.

Judge Si­raj De­sai yes­ter­day de­liv­ered a judg­ment in which he ex­plained he was un­able to de­cide between con­flict­ing opin­ions from ex­pert wit­nesses on whether or not the cou­ple’s Mus­lim mar­riage, which isn’t recog­nised in terms of South African law, meant the fa­ther had no rights of cus­tody.

His judg­ment stemmed from an ap­pli­ca­tion, lodged by the child’s fa­ther, in terms of the Hague Con­ven­tion on the Civil As­pects of In­ter­na­tional Child Ab­duc­tion, for the re­turn of the child to the US.

The child and her mother – who can­not be iden­ti­fied – have been in Cape Town since late last year af­ter leav­ing Ohio to visit rel­a­tives here.

They did not re­turn to the US, prompt­ing the fa­ther to lodge the Hague Con­ven­tion ap­pli­ca­tion.

He claims the mother did not have his con­sent to re­move the child.

But the mother coun­tered that their mar­riage was not valid in South Africa, where it had been solem­nised and was there­fore not valid any­where else.

It meant, her lawyers ar­gued, she was the sole le­gal cus­to­dian of the child.

She pre­sented ex­pert ev­i­dence on the is­sue to sup­port her view.

How­ever, her hus­band pre­sented Judge De­sai with a con­tra­dic­tory ex­pert opin­ion.

The judge said yes­ter­day he was un­able to make a de­ci­sion on which ex­pert was cor­rect.

He post­poned his de­ci­sion and re­ferred the mat­ter to au­thor­i­ties in Ohio, in terms of the Hague Con­ven­tion. Once a de­ci­sion is made in that state, the par­ties have to re­turn to him for a fi­nal de­ci­sion.

Judge De­sai said in the in­terim, he was con­cerned the fa­ther had not had ac­cess to the child.

He or­dered the mother to grant the fa­ther ac­cess if he vis­ited Cape Town.


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