Court grants mother right to keep children in SA away from nomadic father in US
Pretoria News – 25 January 2023
Pretoria - A father of three who lives in Texas in the United States – said to have subjected his children to a nomadic life and who is so controlling that he even watches his children’s weight – lost his legal bid in a South African court to have his children returned to him.
The father launched proceedings in the Johannesburg High Court in terms of The Hague Convention on the Civil Aspects of International Child Abduction Act, to have his children returned.
The purpose of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country, or their wrongful retention in another country.
The Convention does so by establishing a procedure to secure the prompt return of any such child to the country of their habitual residence so that custody and similar issues in respect of them can be adjudicated upon by the courts of that country. The Convention is primarily aimed at deterring self-help, and provides for the return of children in such circumstances.
But Judge Fiona Dippenaar ruled that the evidence before the court proved that the children – aged7, 9 and 11 – will be placed in an intolerable situation if they are returned to the US.
The mother, a South African citizen, obtained permission from her husband to visit her parents here in July last year. While in South Africa, she instituted divorce proceedings against her “abusive” husband and decided not to return to the US. She has since stayed in Gauteng with the children on the same premises as her parents.
After the couple got married they mostly lived in Texas, and all three children were born in the US. The father, a US citizen, was born in Mexico. During 2018 the husband lost his job, the family condominium in Austin was sold, and the family moved to Chihuahua, Mexico, in July 2019. When he lost his job, they moved between Mexico and the US.
While the father painted a picture of a stable home for the children in the US, which he said was far more promising than life in South Africa, the mother painted a picture of a family without roots and who had lived a nomadic existence when the father lost his job.
The mother, an occupational therapist, did not work as her husband had forbidden her to do so. He also refused that the children attend school; they were homeschooled.
The mother and children had to accompany the father wherever he obtained work and had to illegally cross the Mexican border each time as neither the mother nor children had valid passports or visas to live in Mexico.
The mother said the father was a manipulative, domineering and controlling person who abused her – both physically and emotionally, and excessively controlled and dominated the children. She also referred to the “military style exercises” he forced the children to do, his obsessions with hoarding, religion and his male dominance in the family.
She and the children lived in fear of him, she said, as he insisted on controlling their lives and making choices about the children’s hairstyles and clothing, and was obsessive about none of them gaining weight.
Coupled with their nomadic lifestyle, she said the children are better off in South Africa with her. The children also voiced their desire to rather live in South Africa, where they are free to socialise and to go to school.
The judge said the father lacked appreciation for the impact life in the US had on the children and the risks of forcing them to travel wherever he finds work, even if it meant crossing borders “in a clandestine manner”.
He presented a glowing picture of life in Texas filled with opportunities while contrasting it to life in South Africa which “provides a far less certain future”. But the judge said his picture was painted in broad and abstract terms, and disregards the realities of the family’s life experiences and “the erosion of constitutional rights taking place in the US, and specifically Texas; rights protected under the South African Constitution.”