Breach of divorce agreement by denial of access to child

Legal Legal - Divorce
1

Hello all

I and my ex have a divorce agreement that has been in effect for the past 3 years. We have a 9 year old daughter together. I granted her sole pgysical and legal custody, with my visitation rights clearly spelled out, and my right to take my daughter abroad once a year also stipulated. Also the transfer of custody in the advent of death of either of us to my parents
The agreement was legally witnessed and was submitted to the relevant department upon our divorce.
I and my daughter have just returned from our first 1 month trip back home to South Africa.

My visitation time is every other weekend. And I am allowed acccess to her during the week if 24 hour notice is given. Access which is not to be unreasonably denied.
My ex has now told me that I will not be seeing my daughter for the next 6 weekends or so as she has plans which involve her going to Kenting, then to her parents, whom she goes to regularly, and some other nameless tasks that are purely an attempt to ensure my daughter is “weaned off” her increasing attachment to me. Once again I am dealing with an emotionally unstable lady who feels a need to exact some petty revenge.
I have attempted to communicate with her via her friends and people we know, she refuses to listen to them and I am at my wits end as to reasonable avenues.
I know that in South Africa a situation like this would be resolved as per the agreement and any modifications to it would only be in the best interests of the child.
While I am not a lawyert I studied private law in South Africa and am fully conversant with what happens in SA, but I would love to find an English source of Taiwanese legislation and or case law that relates to such a situation
My right to visitation also gives me the right to deny requests for changes which are not given within 5 days.

My ex refuses to take my callls and I have no way of contacting my daughter.
I have informed her ( in our last and only meeting) in front of witnesses and recorded by me) that these actions are unreasonable ,and the clear fact is that my daughter has expressed the desire to be with me on our weekends.
I have informed my ex that I will take her to court as she is in breach of my rights.
I am live in Tainan, have lived in Taiwan for 14 years and speak Chinese.

I should be clear that I am not willing to sit this one out as my relationship with my daughter is something that I value over and above any concepts of “face saving” and the like. My ex is a wonderful person, excep for the fact that she is totally dependent on her moods to determine her actions. Actions which are now harming both my daughter and my rights

Anyway this has become verbose. Any comments, suggestions appreciated.
JMH

2

If you have given your wife sole custody and access then you may not be able to enforce visitation rights.

You should have let her keep the child and raise her but have kept joint custody and access.

I did that with me ex… it’s worked well. Once you give 100% legal custody and access to your ex it becomes impossible to change.

By law once she is granted 100 custody she could move to another country and not have to ask your permission to take the child. Me ex wanted to take my sone to Japan or Canada. So I told her I would not sign any visa applications. Both parents signatures are required where joint custody is involved.

I did allow her to take my son to Australia for 5 years. He’s an Australian citizen so that’s as far as I would let her take him. My son stays with me for school holidays and some weekends and with her in Taiching during school term.

3

Hi
Thanks for the reply. No she has physical and legal custody of the child as per our agreement, but the legal document also clearly states that I am granted visitation rights and spells them out very clearly, no where does it state that my visitation rights are alterable. There is a general legal principle that a legal document is interpreted in context of the whole. Articles 3.1 to 3.6 of my divorce agreement clearly state that I have visitation rights and they are only alterable with my consent.

To invalidate that part of the contract would make the whole contract null and void, My daughter has been coming to me just fine for the past 2 and a half years, it is only now that her mother has decided to not follow the rules laid out in the contract.

So from a legal standpoint I believe I have cause for complaint, access to my daughter has been unreasonably withheld, phone calls are ignored. She now claims on an sms that my daughter does not want to talk to me.
Very bizzare based on the fact that my daughter wanted to come to see me and her mother refused her. Which I have on tape, twice.

What I’d like to know is, do the courts here work on a principle of the best interest of the child, or of breach of divorce agreement in such cases.

My ex would be hard pressed to show that I was an unfit father, as she has been quite happy to let my daughter come to me for the past 3 years.
Furthermore I attend all my daughter school functions, AND my ex requested that my daughter come and stay with me for a week during a period that I was unable to take care of her.

It would appear that what she is doing here is trying to enact a form of petty revenge.
Below I provide the exact content of our divorce agreement as regards my visitation rights.
I know it is long, but clarity in this regard will make further explanantions irrelevant.

  1. The Husband shall have reasonable visitation rights specified as follows:

a) The Husband shall be entitled to spend every alternate wcckcnd of each
month with his daughter The gcncral timc for these visits shall be fiom
Saturday morning at 8:O0 a.m. to Sunday evening at 6:O0 p.m., with
rcasonablc variation of the exact timc to be accommodated.

b)Thc Husband shall pick up his daughter at the daughter’s home or at
another place agreed on between the Parties in advance. The Husband shall
return the daqhter to the Wifc’s care bcfore 600 p.m. on the next day
(Sunday).

c) The Husband may also visit his daughter at other times with the Wife’s
consent and provided he gives the Wife twenty-four hours notice. Such
consent is not to be unreasonably denied.

d)Thc Wife shall make every reasonable efTort to assure the Husband’s
visitation times take place as scheduled, with exception being made for due
attention to the child’s schoolwork, the child’s extra-curricular activities,
and cases of the minor child’s illness where such illncss is best trcatcd at
the Wife’s home.

e) To facilitate resolution of any disagreement regarding wcckcnd visitations,
the Parties agree to be mirtually bound by the gcncral rule that notice of a
rcquest for change as to which Party is to have care of the minor child on a
givcn wcckcnd must be givcn at least five days in advance by 10:O0 a.m.
on monday morning. if such notice is not given within this timc and the
parent). chooscs not to providc care of thc minor child for thc upcoming
weekd as scheduled then that particular weckcnd shall pass as if thc wifc
or husband, as the case may be, had taken the child for that weekend.
That particular weekend visitation need not be made up by Substituting
another later weekend. If notice is given, then every effort shall be made
by the other Party to provide, within the foliowing three weekends, an
alternate weekend to make up for the time of visitation lost.

f) Requests for changes as to the Party to have care of the child on a
designated weekend which are made within the time described above,
requests by the Husband for visitation during weekdays and the exact time
for pickup and return of the minor chid shall be dependent upon the mutual
agreement of both parties.

g) The wife recognises that the husband is a foreign national and may return to his home country. Accordingly during the minor child’s summer vacation period the husband may request a special one month visistation period to accompmany the minor child to his home country.

Article 11 states that in the advent of disagreement regarding this contract the court of first instance is the Tainan Local court

So there it is any comments welcome
JMH

4

Sorry to be picky but it says the husband and not the father… but you’re no longer the husband are you… oops… I’m not a lawyer but some errors can lead to some unwanted results.

Best you contact one of the lawyers on this site really. By the way, did you sign anything in Chinese as well? I guess a finiky judge could say that the part of the contract was valid as long as you were the husband. A separation without registering the divorce.

Did you register the divorce agreement in the household registation office…? which means are you legally divorced? If not yet your divorce agreement may not be valid. To register my divorce the original divorce agreement and both persons had to sign the divorce in the household registration office, otherwise your not divorced.

Secondly you should have the agreement in Chinese as this is the legal language that’s best understood by any court.

Also my son cannot get a passport without both parents signatures until he is 18. I would assume that your daughter has a foreign passport and is not an ROC national atm. She’s going to need a passport after she is 10 years old, she also needs a valid passport to extend her ARC.

Custody Agreement here for my divorce

5

Unfortunately, I spent around 9 months (and some fallout / aftershocks ) in an ugly custody dispute.

First, I and my Taiwanese wife were divorced and it was registered in the household registry office. It stipulated shared custody — our daughter F(now in 2nd grade) was to be able to live with me in the USA and spend vacations (winter & summer) in Taiwan.

At the beginning, F was in the USA with me. And, as per our agreement, the ex came to collect F and take her to Taiwan for a period of about 5 months ( I was due to pick her up in December). The ex pleaded with me to let her and F leave earlier. I said ok. And she pleaded for more and more extra time --it ended up being a month. Later I realized that the curious pleading was as a result of her fear of F staying in my homestate longer than 6 months.

After 6 months I would have had the right to keep F in my state and sue for full custody. That was not my plan however. My plan was to stick to our agreement.

Well, she and F went back to Taiwan. Up until that point, I had been diaper changer, baby bottle preparer, crying baby soother and all around super dad. We had never been apart. Previous to our official divorce, we were separated for almost 2 years during which time the ex agreed to letting F stay with me 5 days a week. My mother was around to help.

This is getting long winded. Well, upon their return to Taiwan, I was no longer able to contact my daughter. The ex had been living with parents and/or sister. I called the in-laws. My daughter was there every morning, and after school.

However, whenever I called, it was usually the father-in-law answering. If I asked “Can I speak with F ?”, he answered in a gruff voice “She’s not here.” Where is she? — I don’t know — When will she be back — I don’t know — When is it convenient to reach her? — I don’t know.

There is more to this…but…to the point…

I was informed by my ex and her brother-in-law that if I could never see my daughter again. And that if I returned to Taiwan I would be put in jail.

After spending US$2000 on an American lawyer who ultimately said there is nothing that can be done, I was advised by my Taiwanese lawyer that if my ex sued me for full custody that I would lose by default of course if I were not in Taiwan – so I should come back.

So I did. And it took the AIT, Kaohsiung Police, and a judge for me to finally see my daughter again after around 5 months. And that was limited to Saturdays from 2 pm - 4 pm in McDonald’s and the ex had to be present.

In the end, I have shared custody and my daughter spends roughly half the time with me – but she cannot leave Taiwan as long as the mother does not agree.

6

Well, if you ever get an answer to any of these questions please let me know… I went through a terrible divorse with a wife that wants nothing but to see the worse for me… Well the judge here in Taiwan I guess saw through all her lies and was very fair and granted me very reasonable visitation rights including a month in the winter and summer to take my daughter home… Well, that was then… Since then my ex has made it nearly impossible for me too see my child. She does not follow the rights granted to me in the papers so right now I am at a complete loss as to what to do.

So I would also like some advise on what I should do as well… Since the divorce I really do not have the cash to get a lawyer so I am sort of lost now…

7

I know nothing particular about hte law, but reading the agreement, I wonder if your ex’s having notified you that you will not be the one taking care of your daughter on the weekends you would normally have had her (as listed by your ex) comes under the “prior notification before such-and-such a time” clause. I assume that one would normally think this is to let the parent who would normally be taking the child get out of taking the child because of something pressing that has to be done, but I suppose it could be turned around as well, right? Althogh how that (logically) fits in with no denying reasonable visitation I am not sure.

The one thing I can say for sure is that legal rulings or decisions in Taiwan are not always as logic-based or term-based as they are in Western countries. I think you need an attorney, as others have said. Good luck.

8

If you have joint custody, it should be easier for you to get access, and I have a joint custody agreement spelled out.

That said, a registered divorce is a legally binding agreement, so well - take it to a lawyer, a standard one might charge you NT$3000 for telling you what can be done.

9

[quote=“Ayoimawake”]. She does not follow the rights granted to me in the papers so right now I am at a complete loss as to what to do.

So I would also like some advise on what I should do as well… Since the divorce I really do not have the cash to get a lawyer so I am sort of lost now…[/quote]

Sorry to hear about your troubles. I feel you bro 'cause I been der.

AIT has a list or recommended lawyers. You could go there and ask for it. Or, from whatever country you are from – ask your embassy. There are some lawyers who will talk with you about your case for free! Try just dialling up a lawyer and talk with them. If they are willing to talk with you over the phone – they know they can’t charge you for it. Although I had already been to court and everything was settled (for the second time), I called a lawyer on that list and he gave me a lot of good advice for free.

There is also a legal aid organization listed here in forumosa. Check it out.

10

I am so saddent by these stories. Recently a grade one student of mine’s parents got divorced. And now his father doesn’t allow him to see his mother. The only time he and his mother see each other is in the afternoon when she picks him up from the elemantary school and takes him to our cram school. And then the principal and I are struggeling to take him inside, because he is crying and shouting because he wants to be with his mother. And when he goes home, his father and grandparents always say bad things about his mother. This is really messing with his head! He changed from the bubbly kid he was in kindergarten to a quiet, passive kid in class now.

Parents who deny a child seeing his or her other parent, love themselves more than they love their child. Unless, of course, the other parent is a psyco or pedophile! I just wish I could do more to help this boy. He is only 8 years old, but everyday he is so sad…except for brief moments of happiness.

11

I’m sorry I have no help to offer here, but I myself am interested in signing some sort of legal Taiwan documentation that specifies a foreign person to take charge of our child if we (his parents) die. As far as I was told previously Taiwan will not recognise foreign carers and the first people to take charge of him would be his grandparents (Taiwanese) whom have no way of taking care of him at all. Can any person here advise?