Judge refers custody battle to US authorities

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.

fatima.schroeder@inl.co.za