A Western Cape man, who wanted to continue having contact with his former partner’s two children even after the break up, approached to court to grant him access to the children.
To protect the identities of the children, everyone has been referred using initials.
DR and NM, a same-sex couple, got married in April 2023.
DR has two biological children, two boys who were born via surrogacy before he met NM.
When they met, NM had one child, WML, a girl which he got from his previous marriage with RL, the union was also same sex.
However, NM is WML’s biological father.
When NM and RL divorced in November 2020, they concluded a parenting plan where NM was stated as the primary caregiver and RL also has full parental rights including weekly visits.
After almost six months of dating, in February 2021, NM told DR that he wanted another child. DR told NM that he would support him but won’t be involved in the legal process.
According to DR, he was willing to adopt the child once they were married, but it never happened.
It was DR’s evidence that he assisted in choosing the surrogate mother and after that LM, a boy, was born on April 12, 2022.
In his court papers, DR told the court that after the birth of LM, NM could not cope and fell into a state of depression.
He said NM was taking sleeping tablets and they affected him to such an extent that not even a screaming baby would wake him.
He said he single handedly managed LM’s night routine and also took care of the other three children including WML. He admitted that he got a little help from the nanny while he was working and running a company on a full time basis.
He testified that despite taking medication, NM’s depression persisted, and his overall mental health declined. He isolated himself, disengaged from their family unit entirely and was incapable of functioning on even the most basic level.
DR said NM’s condition continued to deteriorate despite going with him to see a doctor who advised him to stop taking the sleeping tablets.
NM was subsequently admitted to a psychiatric ward at Vincent Pallotti Hospital where he stayed for three weeks.
During the admission, DR said he continued to be the children's primary caregiver and ensured that all their needs were met.
On February 1, 2024, NM was admitted at Anker Huis for treatment but later, he wanted to complete his treatment at home and unfortunately DR was against it. He told him they had already tried that approach and it failed.
After spending almost 10 days at the centre, NM called his mother who fetched him and then he went to the place he shared with DR and took his children and went to stay with his mother.
DR said he managed to make contact with the children several times but when he asked to have them for two nights NM said he was not legally bound to agree to his request.
DR approached the high court saying that it was clear that if an arrangement was not put in place, NM would continue to deny him access to see the children.
He brought his application in two parts, in part A, he wanted the court to grant him primary care of the children until part B of the application was complete.
As an alternative, he wanted to be awarded reasonable contact with the children which will be Tuesdays after school until Wednesday 8am, and every alternate weekend from Friday after school until Monday 8am.
In part B, he wanted a specific psychologist, Leigh Pettigrew, to be appointed as an expert who will conduct an assessment and compile a report setting out her findings and recommendations regarding future contact arrangements between him the children.
NM opposed DR’s application and stated that he was seeking a drastic and far-reaching relief by wanting primary care of his children. He said there was no merit in DR’s claim for primary care.
He admitted that DR was capable, involved, and a caring parent. However, there was overwhelming evidence from mental health practitioners, the children's teachers, and several family members that he was also capable of providing good care of the children.
He further stated that DR’s application was a bullying technique in response to their break up and his decision to stop with an inpatient treatment program.
He said he was diagnosed with bipolar disorder when he was 18-years-old. However, his condition has always been managed by medication as prescribed by his psychiatrists.
RL also opposed DR’s application and said WML was born while he was married to NM, and if his former partner was unable to cope, WML should be placed in his primary care.
He further said DR’s application demonstrates a lack of respect to him and NM as WML’s parents.
Moreover, he said said him and NM can exercise their parental rights and responsibilities without interference from any third party.
Judge Dumisani Lekhuleni who presided over the matter, said stability must be maintained and children must not be disrupted from their routine.
“WML and LM have a closely knitted relationship with the applicant's children. The four children have been raised together as ‘siblings’ for a period of two to three years or so,” he said.
The judge said DR can have LM on Tuesdays after school until Wednesday 8am, and every alternate weekend from Friday after school until Monday 8am.
Regarding access to WML, he said for now, the decision will be made by NM and RL as her parents.
However, WML will be included in an investigation which will be conducted by two experts who will determine what’s best for her going forward.
Pettigrew together with Terry Dowdall were ordered to urgently conduct an assessment and compile a report setting out her findings and recommendations regarding future contact arrangements between the parties and the children and what would be in the best interests of the children.
Part B of the application was was postponed indefinitely pending an assessment report by Pettigrew and Dowdall
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