Hi there.

I live in South Africa and have been trying to find a viable solution to a problem regarding my rights as a father. A brief history:

Roughly three months ago, my wife told me that she does not love me anymore and wants a divorce. I told her that I do not want a divorce and that we should seek professional help regarding whatever problems there might be that brought her to this conclusion. Needless to say, she has made up her mind and firmly sticks to her belief that our marriage is over. In the next few days, we agreed on a "trial separation" in order to determine if it would be the positive thing to do. After the month she was still persistent in continuing the divorce. I moved back to the house for three weeks and she then asked me to move out permanently, as she found it uncomfortable with me still living in the house.

The problem I am facing, is that we have two beautiful children together. A four year old boy and a beautiful little girl aged two. These two miracles are what made our world revolve. During the trial separation, I lived with my dad, and during that time, I only got to see our babies for about a total of one week (if that much). Upon my returning home, our children were already distraught with the fact that I was gone for such a period and both children wanted to spend exceptional amount of time with me. We (my wife and I), in our own ways, have VERY strong ties to our children, and we have duely shared responsibility regarding their upbringing, i.e. bathing, feeding, playing, making turns watching them at night time, etc. Both children are exceptionally bonded to both of us. The three weeks that I was back at home after the trial separation, proved to me who has the stronger bond with "me" regarding our babies though. Our daughter, was the one who came to my room every night, wanting to sleep next to me every night. My son, came to my room every second night and I allowed them their time with dad. Both to try and show them that dad has not left them and to reassure them that dad will always be there for them both no matter what.

At the third week, my wife asked me to leave the house. I had to quickly find suitable and affordable accommodation and was fortunate to find a place at such short notice, that could provide safety and security for when I would have the babies over. I tried to negotiate with my wife, times for which I would be able to spend time with our children, but she made it very clear that our children would stay with her during the week and I could see them only on weekends. All I tried to negotiate for was at least two weekly overnights and then weekends, but she blatantly refused me. Claiming inconvenience towards the children.

I live a 25 minute drive away from them now and in my opinion: With the babies being so attached to me as well, that a 25min drive twice a week, would be the lesser of two evils compared to the hardship they both have to face, and understanding they have to try and comprehend with the "loss" of their father, whom have since both their births, been so actively involved in their lives. The concern I have, became very real after this past weekend I shared with them. My son, the whole weekend, kept asking me if I love him and all weekend I had to assure him that I love him more than all the stars in the world and more than all the water in the ocean. My daughter again in turn didn't want me out of her sight at all. She literally just wanted to be in my arms all weekend, which to me was also a sign of her "mental distress".

In the meantime I asked my wife regarding her decision for a divorce, and she calmly told me that she has not filed for a divorce yet because she cannot afford it. I honestly do not want this divorce, believing that we could still make this marriage work. But in the meantime, she has everything she wants at this stage, me out of the house and total control over my emotions and our children.

My question regarding this whole situation is: what can I legally do, to gain more access to our children? She is really not a bad mother, but she obviously has no regard for what the children want and need regarding their dad. My son has told me numerous times how either him, or his sister cried for me during the nights with my wife, but she never wanted them to phone me. All I want is the opportunity to see children more often for them to know and realise that I did not forget about them and I did not throw them away. I want to spend as much time with them as humanly possible. I don't want to fight for sole custody, because I firmly believe that children need both parents equally. There was never anything that my wife gave them that I didn't either and that is how it should be. Legally we are still married within community of property, I am still legally the babies guardian, but due to my wife's overwhelming personality, I cannot convince her to "meet me halfway". What can I do from a legal point of view? If anybody could please help me in this regard I would really appreciate it. Financially I cannot afford legal battles and above that, I honestly do not want to put our children through such a process. Is there no legal way of solving this issue?

Kind regards, Louw

You need to see about filing for joint custody.
Tell the Judge that the kids cry for you and it isn't fair to you or them that she keeps them away.

I am not sure about African law but I am sure you should be able to do at least this much.

I think you sound like a very caring person and good father. By contrast, your wife has placed her own emotions and needs above those of the children and is insensitive and egocentric. Not uncommon at all.

I think you should have no problem having as much time with your children as you like. Perhaps you could arrange a 50-50 parenting plan with a week-on-week-off arrangement. This is not uncommon in the states.

While I cannot speak directly to South African law on the subject, I am confident that you will do well in court. South Africa is a modern, progressive country with a legal system not unlike those of other Western democracies. In fact, South Africa is to be praised for its respect for human rights and the integrity of its legal and political systems.

Check with a local family law attorney in your area for the best way to secure your rights to frequent and continuing contact with your children. You'll be fine and so will your children.

cadillac59 and N0help4u, I just want to say thank you kindly for taking the time to read my post and advising me in the matter. I have an appointment with a female family law attorney next week. She informed me that nothing can legally be done regarding "full physical custody" until my wife and I are actually divorced. What she could help me with though, is a wider range of access to our children. I am very happy at this stage with the fact that at least I know now that our babies could legally spend almost equal time with each of their parents. Although I would prefer it if my wife and I could actually sit down and see what we could do to repair our marriage so our babies could be with both parents all of the time, I guess this, for now, would be as good as life will get. I am content with that thought. Thank you all kindly once again. Blessings to you both. Regards and keep well.

cadillac59 and N0help4u, I just want to say thank you kindly for taking the time to read my post and advising me in the matter. I have an appointment with a female family law attorney next week. She informed me that nothing can legally be done regarding "full physical custody" until my wife and I are actually divorced. What she could help me with though, is a wider range of access to our children. I am very happy at this stage with the fact that at least I know now that our babies could legally spend almost equal time with each of their parents. Although I would prefer it if my wife and I could actually sit down and see what we could do to repair our marriage so our babies could be with both parents all of the time, I guess this, for now, would be as good as life will get. I am content with that thought. Thank you all kindly once again. Blessings to you both. Regards and keep well.

Glad I could help out. I'm sure you'll do fine. One other thing I wanted to say. Your title question was custody of minor children without divorce.
We actually have that in California. Although it's fairly uncommon to see, it is possible to obtain custody orders regarding children of a marriage, as well as child support, and not seek a divorce. It's taken care of in an action entitled, Petition for Custody and Support of Minor Children.
You might ask your attorney if there is such a thing in South Africa.

I've always been rather interested in and fond of South Africa. I've got Cape Town on my list of must-visit places in the world. I live in the San Francisco Bay Area of California and they say Cape Town is the San Francisco of South Africa! Sounds good to me!

Glad I could help out. I'm sure you'll do fine. One other thing I wanted to say. Your title question was custody of minor children without divorce.
We actually have that in California. Although it's fairly uncommon to see, it is possible to obtain custody orders regarding children of a marriage, as well as child support, and not seek a divorce. It's taken care of in an action entitled, Petition for Custody and Support of Minor Children.
You might ask your attorney if there is such a thing in South Africa.

I've always been rather interested in and fond of South Africa. I've got Cape Town on my list of must-visit places in the world. I live in the San Francisco Bay Area of California and they say Cape Town is the San Francisco of South Africa! Sounds good to me!


Thank you again. I was so surprised today. Shortly after I confirmed my appointment with my lawyer, my wife contacted me, telling me that she will agree on my proposed parenting plan regarding joint physical and legal custody of our children. As I have mentioned before, I do not wish for this divorce to go through, but under the circumstances, I do not want full or sole custody either. I wish for a fair and even shared time and responsabilities regarding our babies and my wife finally saw the purpose and positive side to co-parenting in this manner. Thus far, on paper at least, we will share equal time with our babies and I know that our babies would thank us for this in their future. This way, we can both still be actively involved in their upbringing and future and neither one of us will be "alienated" from our babies. To me this is very important and extremely positive, under these sad circumstances surrounding the divorce aspect. Needless to say, both our babies will at least see more of their dad as of next week and I am very pleased. Rather have two happy homes, compared to one unhappy home, right...

On a lighter note, cadillac59, you should absolutely have to make a point to come visit SA. It is true what they say about Cape Town. Especially in season, it is a buzz of tourists, sun, surf, late nights and plenty of entertainment. I am from Port Elizabeth though, which is seven hundred kilometres from Cape Town, but also still a very nice tourist attraction in the summer time. I hope that you will have a great weekend cadillac. Again thank you so much for your assistance. God bless!

Glad things are working out for you.

I'm a family law attorney in California and a Certified Specialist in the field and I see many cases like yours. I'm really not that surprised that your wife has changed her tune.

Yes, Cape Town is a must-see for me, maybe Durban. Jo-burg not so much. And I forgot your summer is in January, which is a good travel time for us !

Let us know how you do with your parenting plan.