South Africa’s divorced and unmarried fathers have to battle to maintain contact with their children, or to have contact at all.
This is according to the Wits University authors of a paper focusing on the hardship faced by fathers who struggle to maintain contact with their children after divorce.
Professor Weshal Domingo, the head of law at Wits and a family law expert, and her colleague, law lecturer Prinslean Mahery, write how, despite South Africa’s new Children’s Act framework, which “created a shift from the idea of parental power over a child to the notion that parents have parental responsibilities and rights, this hasn’t fundamentally changed the constant battle that parents and other interested parties have over children.
“In most cases, it’s fathers who must battle to either maintain contact with their child/ren or fight to have contact with their child/ren. This is the case whether or not the father was married to the mother of the child in question,” they write in Father’s Rights to Contact: Moving beyond the adversarial approach.
“We argue that family life is not an equal playing field for mothers and fathers, so simply trying to find equalising solutions in terms of the right to contact will not be effective. We recommend moving beyond the adversarial approach of win or lose through the ethics of care approach.”
The “maternal preference and tender years” doctrine has been abandoned by the country’s courts to an extent, largely because of constitutional provisions of equality and non-discrimination.
“The biological father who was married to the mother has full parental responsibilities and rights in respect of the child unless a court order says otherwise.
“The Children’s Act now contains provisions which not only strengthen the unmarried father’s right to equality in relation to having rights and responsibilities in respect of the child equal to that of the mother, or to a married or divorced father, but in giving effect to the rights of all children to maintain contact with their father.”
They describe how in one case before the Supreme Court of Appeal in 2011, a father was locked in a five-year battle with his child’s maternal grandmother after the child’s mother died when she was two months old. They were never married.
“Despite the family advocate’s report indicating the father had acquired full parental responsibilities and rights in respect of the child, and subsequent court orders to that effect, the grandparents were persistent in their attempt to frustrate the father’s rights by continuously seeking orders to have custody.”
The court made an order in favour of the father.
In many cases, the strained relationship between the parents further aggravates the frustration of contact between father and child.
The authors cite one case in 2010 in which a mother was granted custody and the father had right of contact following the couple’s divorce.
“Although the father’s access rights were spelled out in a settlement agreement, they never happened. The father had to apply for an interdict to prevent the mother from frustrating his access rights. The court put in place a structured and detailed contact order.”
Fathers, write the authors, can face many challenges to their access rights from “unfounded allegations and protracted litigation to the blatant disregard” for court orders confirming their rights in respect of the child.
“Despite progressive case law and legislation, many fathers still believe that courts are biased against them because of their sex.” Many fathers argue that even when they have contact orders in place, “you have mothers who routinely refuse to obey contact orders”.
In another case in 2011, a father alleged that the mother of his son had alienated the child from him for five years by “telling him that he killed their first-born child (who died because of being born prematurely), that he used to beat her up all the time during their marriage, and that he made no financial contribution to the child’s maintenance, although he had been paying R4000 a month at all times.
“The court concluded the mother did in fact deliberately alienate the child from his father over a period of seven years.”
In many cases, the court relies on expert evidence to assist in reaching a finding that will serve the best interests of the children involved. “However, on many occasions experts fail to assist the court and abandon their professional duties in these cases.
“Experts fail children when they make recommendations which tend to serve the interests of the party who called them and not the interests of the children who will be affected by the outcome of the case.”
Domingo and Mahery point to the “greed” of some lawyers, and of judges who have been accused of failing to implement the Children’s Act. “Many South African judges still favour the mother and still hold on to the ‘tender years’ doctrine where mothers are automatically assumed to be better carers of children, especially girls, than fathers.”
More and more, however, courts are mandating mediation. “Courts have also been vocal in preferring mediation by couples who are caught up in a battle when exercising their parental rights and responsibilities.”