Johannesburg - Children today are more protected than ever by the law, to the extent that they can choose which parent to live with after a divorce. Yet the reality is many parents still abuse their privileges as guardians.
A father writes on the Fathers-4-Justice support group website: “The mother of my 11-year-old son has met a man on the internet and intends getting married. She wants to relocate with my son. She has tried to get my consent and is now threatening a court application. What are her chances of succeeding?”
The question touches on a common dilemma in South Africa where, according to Stats SA, more than 20 000 children are affected by divorce each year and millions of children grow up in single-parent households, often without access to the other parent.
And while the Children’s Act is clear about the child’s best interests being of paramount importance, ensuring this happens is often fraught with negative emotions, lengthy legal battles and prohibitive expense.
Steven Pretorius, founder of Fathers-4-Justice, says that despite the legal protections in place, he has come across a number of cases of mothers illegally leaving town with children, despite a court awarding the father rights of access. “And I have yet to come across a court order that refused the mother permission to relocate,” he charges.
That said, the courts are increasingly enforcing a father’s rights as the concept of “the best interests of the child” gains traction, according to Gillian Lowndes, family lawyer at Lowndes Dlamini Attorneys.
“The rights of the father have been greatly strengthened under the Children’s Act (2005), and the courts are starting to approach these cases differently from the past,” she says.
“It is no longer a case of a mother automatically becoming the parent the child mainly lives with. The focus now is on who is the better parent – and often it is the father.”
These considerations are typically overlooked in the heat of a divorce or split, where parents assume they are the only parties involved in decisions about their children. And it comes as a surprise to many parents to discover how far the courts are prepared to go to reach a decision that serves the child’s best interests.
Children are encouraged to participate in court proceedings and to express their views, for instance.
“We’ve shifted from the historic perception of parents having power and authority over children, to focusing on the responsibilities of parents and rights of children to proper care, protection and well-being. This includes hearing what the child wants for him or herself,” says Lowndes.
In effect, if the child is mature enough, he or she may be able to influence the court’s decision regarding which parent they mainly live with. The law also gives a child the right to be informed of any action or decision taken in a matter concerning them, and to be involved in such decisions.
“Unfortunately, very few legal professionals consult children when preparing parenting plans on behalf of their clients,” says Lowndes. “The difficulty is that there is no specific guidance given by the Children’s Act as to how these view are to be obtained, in an objective manner, from the child.”
This speaks to the fallibility of a legal process that has to navigate what is typically an acrimonious landscape sometimes riddled with manipulative tactics by one or both parents. Parents can get conflicting psychological reports supporting their fight for custody, for instance, or the financially more powerful parent may present a strong case for providing better living circumstances for the child.
Pretorius says one of the unforeseen consequences of levelling the playing field is “the fight has got a lot uglier”, adding: “Since the burden of proof now lies with the mother to prove to the court why the father should not be awarded his automatic parental rights, some mothers resort to underhanded tactics to discredit the father, including false accusations of domestic violence or child abuse. Contact with the child is then suspended until the outcome of a criminal investigation.”
On the other side of this coin are single parents, most of them mothers, who are battling to get the other parent to meet their parental responsibilities. Maintenance defaulters are still pandemic, despite the well-intentioned Maintenance Act and the appointment of maintenance investigators in 2005. And in these cases, the law’s sluggishness often inadvertently aids the perpetrator.
“I have been fighting for maintenance for years for my two boys. My maintenance file went missing for over a year during which there were numerous postponements so it could be located,” says Julie Robertson.
“It was then found lying idly around the office of one of the maintenance investigators, who hadn’t done anything about looking into my ex’s finances. My ex is self-employed, so I can’t get a garnishee order.”
Again, while it may be frustrating and unfair, the best course of action is to keep up the pressure and know your rights, says Lowndes. “Every time there’s a payment default, go back to the maintenance officer and report it. Create a relationship with the maintenance officer and prosecutor, who are legally obliged to follow procedures.”
The maintenance officer must initiate an investigation into why payment has not been made, which includes looking into how and what the defendant is earning. And if he or she is found to be in contempt of a court order, they face arrest.
“Movable property can also be attached by the sheriff,” says Lowndes.
If a parent doesn’t come to court to face a maintenance application, a maintenance order can be granted by default.
“The forms and procedures are simple and clear, and although the wheels turn slowly, they do turn, so invest time in using the system,” Lowndes advises. It’s also useful to know that in certain circumstances – like when a man has no means of paying maintenance – grandparents can be ordered to pay it.
Ultimately, non-payment of maintenance is a criminal offence, but it’s important to realise that denial of contact with a child (which is unrelated to whether maintenance is paid), is also an offence for which a parent can end up paying dearly, as the Children’s Act allows for a fine or a prison sentence for up to a year for denying the other parent their rights.
Again, these measures are there to protect the child’s best interests, and although the execution of them is often flawed, parents with good intentions have solid, well-devised guidelines to fall back on, says Lowndes.
Of course, it’s best to avoid long, expensive court battles if you can. Mediation is a better option, and SA Association of Mediators spokeswoman Susan Harris says: “The objective of mediation is to facilitate and speed up the effective resolution between spouses and parents in a cost-effective manner, as well as assist them to determine whether or not it is in their best interests to proceed with a trial.”
As to the answer to the first question by the man writing to Fathers-4-Justice, the outcome is likely to be expensive, and an unhappy one for at least one parent. And probably the child, too.
As Lowndes says: “It is well-recognised by now that the best outcome for a child, for them to thrive physically, intellectually and emotionally, is to have continual, healthy contact with both parents.”
It’s something to bear in mind if you’re headed down this rocky road yourself. - The Star
* For more info on mediation, visit www.saam.org.za or e-mail [email protected].
* Call Lowndes Dlamini Attorneys on 011 292 5615 or e-mail [email protected].