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Reckless driving and custody

I have had various clients asking me whether reckless driving should influence a court's decision as to who care of the child should be awarded to. This could include drunken driving, exceeding the speed limit or simply just reckless driving, while a child is in the vehicle.

There is a legal duty as well as a moral duty to protect a minor child and ensure that no harm comes their way whilst in your care. What can be done to a parent caught speeding with a child is however a different story.

One client advised me that his wife drove a vehicle owned by him with a tracker on it. This tracker could determine where she had been driving and at what speed. My client was paying for the vehicle instalment, insurance and tracking on the vehicle. His wife was aware of the tracker.

On a given day his wife was caught exceeding the speed limit and driving at 150km/hour with the children in the vehicle. If there was an accident at that speed the children and the wife may well be killed. His wife was clearly endangering the lives of the children.

However according to law, a tracker's information may not be used for a speeding charge as it does not conform to speed prosecution guidelines. The lady could therefore not be charged for speeding and neither could she be charged with reckless or negligent driving, as there was no police official who actually witnessed how she was driving. The only evidence is the tracker.

So what can my client do in this case to ensure the safety of the children? One solution could be to take the vehicle away from his wife. She would then however reserve the right to launch a Rule 43 Application to have the vehicle returned to her. There is a duty on a spouse to maintain another spouse in the same way once they have got them accustomed to a certain standard of living. Removing the vehicle couldn't work.

Going to the police wouldn't work either. They don't often get involved in domestic disputes like this. They would say you should either go to a marriage counsellor together, or that you must proceed with divorce.

If there is sufficient evidence before a court to prove that a child's life is in danger as a result of speeding, the court must look into the child's best interest. Such a driver who speeds may only be awarded supervised contact of the child due to their bad driving. Such a parent shouldn't be awarded primary care of a child in my opinion. The child's life would then be at risk every single day, on the way to school or travelling elsewhere.

Should tracking be used and acceptable by a divorce court in awarding custody? In my opinion yes but this is only one of several factors which should be taken into account in awarding custody. Previous criminal convictions for reckless driving is a major factor to be looked at. At the end of the day it is in the court's discretion as to whether tracking should be admissible as evidence. I think it should.

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