Religion and Divorce – Can parents dictate a child’s religion?

 

Katie Holmes (Cruise) filed for divorce in a New York court last week after being married to Tom for five years, and they are expected to clash about how 6 year old Suri their minor child is brought up, with the 49-year-old actor adamant she remains part of the Scientology religion he is part of. We all know that Tom Cruise is incredibly passionate about Scientology and that this isn’t just some hobby for him. According to reports he truly believes in the church and its teachings and truly believes that it is imperative that his children are raised as Scientologists. Tom believes Scientology changes people’s lives for the better and, obviously, he wants what is best for his children.

The media frenzy about the divorce between Tom Cruise and Katy Holmes prompted two interesting questions in South Africa law, namely what if parents can’t agree on the spiritual upbringing of their child? and what if a child disagree with their parents religion or traditional socio-cultural beliefs?

There has been a dramatic shift during the twentieth century in the law regarding the relationship between parents and their children, both internationally and in South Africa. In the past there was an emphasis on the rights and powers of parents (termed parental authority), but this emphasis moved towards a more child-centred approach with the best interest of children at the forefront. Today parental authority is concerned more with parental responsibilities and duties, which should be exercised in the best interest of children, rather than with parental rights and powers. The Constitution of the Republic of South Africa specifically protects the rights of children in that it recognises that children, as a vulnerable group within society, have specific and unique interests different from those of adults, and that these interests deserve special and separate protection.

The question regarding religion within the family relationship has been dealt with in 2001 in the case of Allsop v McCann. In this matter the custodian parent applied for an interdict to restrict the minor children in certain religious practices whilst in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict from preventing the children from attending the Catholic Church. The court held that the custodian parent (the parent who has primary care of the children) is entitled and required to direct the daily lives of the children and that educational, religious and secular activities fall within that duty. However the court ruled that neither parent may dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.

In 2003 in the case of Kotze v Kotze the court refused to incorporate into a settlement agreement a provision which stated that both parties undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of a child, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interest of the child as it did not afford him the freedom of religion that he was entitled to.

Recognising that children are the holders of fundamental rights may conflict with the rights of other holders of human rights especially within the family context, where different fundamental rights can come into conflict with one another, for instance between the parents’ right to religious freedom and their children’s rights to life and human dignity. This requires a weighing or balancing act to determine which right must take preference. This balancing of interests often creates tension, which can have serious negative implications for those involved within the family context.

In a ground-breaking case not so long ago the Western Cape High Court was requested for the first time to use its discretion to interfere in the parent-child relationship, due to the “traditional socio-cultural beliefs” of the parents. In what has been described as “every parent’s nightmare; the fancy of many teenagers”, a 16 year-old schoolgirl from the Western Cape asked to be “freed” from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. According to reports her parents came from a very conservative sector of South African society and kept her under constant supervision, barred her from talking to boys, communicating with friends on her mobile phone, reading what she likes (her parents found Harry Potter inappropriate) or even going out with friends after school.

The court granted her request to live semi-independently with a school friend and her family (referred to by the judge the host family) until she reaches the age of 18 (her majority). It was further ordered that the parents could have contact with her for two to three hours a week at a neutral venue and could phone her between 8:00 and 8:30 pm on a Tuesday and Friday. Holidays were shared between the host family and her parents. Despite the fact that the child no longer resided with her parents, the parents retained their responsibility to contribute to the maintenance of their child.

When parents are acting within the law, even though they are seen to be conservative, and their actions don’t reflect any form of abuse or neglect, their responsibilities and rights must take preference above the rights of their children, for without this kind of recognition the value of the traditional family unit as the natural and fundamental unit of our society will not be recognised. A child’s mere dislike or disapproval and personal preferences in their upbringing cannot alone tip the scales of justice in a child’s favour.

The relationship between parents and their children is very personal in nature. This domain forms part of the world of morality and not even the state should interfere unless the parents’ conduct towards the child is harmful or amounts to unlawfulness. When the conduct is not in the best interests of the child or contravenes constitutional rights, such conduct is inconsistent with the principles of the Constitution and thus invalid.

Source: http://voices.news24.com/bertus-preller/2012/07/divorce-can-parents-dictate-what-religion-a-child-should-adopt/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. Cape Town

021 422 1323

Divorce – What every woman should know

Divorce - What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

Children are not pawns in the deadly game of divorce

Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other. This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

“Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrinations by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association is contemplating adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, scheduled to be published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes one the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence.

http://voices.news24.com/bertus-preller/2012/04/children-are-not-pawns-in-the-game-called-divorce/

Relocation of a Child – A court is not bound by the recommendations of the Family Advocate

Relocation of parents with children after divorce

Celimene v Scholtz [2011] ZAGPJHC 170

In a recent matter before the South Gauteng High Court, the mother of a child approached the High court to grant its consent for her to leave the Republic of South Africa after her former spouse and the father of the child refused to grant his consent to remove the child from the Republic of South Africa and to reside permanently in France with the mother and her new husband. The report and recommendations of the Family Advocate and those made by a family counsellor that it would not be in the best interest of the minor child should the court grant the removal was found not to be valid and was disregarded by the court. From this case it is evident that a court is not bound by the recommendations of the Family Advocate.

Parents sometimes consider that it will be in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. A parent can not be expected to tailor his/her life so as to ensure that the children and their father or mother as the case may be have ready access to one another. That would be quite unrealistic. A parent, after separation must  fend for himself/herself in the world and must perforce have the freedom to make such choices as he/she considers best for him/her and his/her family. Most parents are undoubtedly fully aware of the value to be placed on close contact between the children and their father/mother.

The mother maintained contrary to a report of the Family Advocate that it was in the best interest of the minor child that he should be allowed to relocate to France with her and the rest of the family and that the father’s refusal to grant his consent was unreasonable. The mother conceded that the father has always been considered to be a good father to the child.  She has never felt any need to reduce the child’s contact with the father.

Her reason for relocating to France was firstly that her new husband’s contract in South Africa has come to an end and that her husband wanted to remain in the employment of his company where he had a bright future.

In his opposition to the application the father relied mainly on the report of the Clinical Psychologist and maintained that it would not have been in the best interest of the child that he should be allowed to relocate to France.

His main contentions were that the minor child will be removed from his present stable and secure environment and most importantly would lose the benefit of his close and meaningful relationship with him and the extended family.

The legal principles applicable in relocation cases was eloquently set out by the Supreme Court of Appeal in the matter of Jackson v Jackson 2001 (2) SA 303 (SCA) para [2] at 318E-I where His Lordship Scott JA said the following:

It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token care should be taken not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.

The parties as well as in the reports of the Clinical Psychologist, the Family Advocate and a Family Counsellor all agreed that the child had a close relationship with both his parents.  The child is also bonded closely with his stepmother and his stepbrother.  According to the Clinical Psychologist the child did not have the same relationship with his stepfather with whom he had to relocate permanently to France.

The only dispute between the parties was what would be in the best interest of the minor child. The mother took the view that it was in the child’s best interests that he be allowed to leave the Republic of South Africa with her whilst on the other hand it is the father’s view that it was not in his interests to leave the country.

The court noted that a dispute of fact does not exist in matters relating to the question what will be in the best interests of the child and that cases like these give rise to anxious considerations and pose the knottiest and most disturbing problems.  See in this matter Godbeer v Godbeer 2000 (3) SA 976 (W) and Ford v Ford [2004] 2 Al l SA 396 (W).  In the as yet unreported case of Maryke Cunningham v Daniel Johannes Jacobus Pretorius Case No. 31187/08 Gauteng North High Court His Lordship Murphy J expressed himself on para [10] thereof as follows:

The letter and spirit of the new framework giving supremacy to the best interest of the minor child, sets a standard which is not proof on a balance of probability.  What is required is that the Court acquires an overall impression and brings a fair mind to the facts set up by the parties.  The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child.

Section 7 of the Children’s Act sets out factors to be taken into consideration in determining what is in the best interests of the minor child. Not all these factors are always relevant, but what was key in this application was what is set out in section 7(1)(d), (e) and (f) which must be read in conjunction with the opinion expressed by the Clinical Psychologist and the Family Advocate.  I quote hereunder in full section 7(1)(d), (e) and (f):

 Section 7(1):  Whenever a provision of this Act requires the best interest of the child’s standard to be applied, the following factors must be taken into consideration where relevant namely:-

 d)       the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from –

 (i)           both or either of the parents or

 (ii)          any brother or sister or other child, or any other care-giver or person with whom the child has been living;

 e)       the practical difficulty and expense of a child having contact with the parents or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents or any specific parent on a regular basis;

 f)         the need for the child –

(i)         to remain in the care of his or her parent, family and extended family and to maintain a connection with his or her family, extended family, culture or tradition.

A Clinical Psychologist was instructed to assess the minor child, his mother and his father the with a view to recommending what would be in his best interest with regard to the mother’s desire to relocate to Paris in France.

In carrying out the mandate the Clinical Psychologist obtained information through interviews, clinical observations as well as various psycho-diagnostic tests in which the child and his parents participated.

The psycho-diagnostic tests employed were the following:

 The Draw-A-Person Test

This projective test is used to obtain necessary information regarding self-image, personality functioning and developmental information with children.

Kinetic Family Drawing Test

This test is designed to assess the child’s perception of the relationships and dynamics in his/her nucleur family.

Bere Anthony Family Relations Questionnaire

This assessment tool is extremely effective in measuring a child’s emotional response to his/her family, the words for which may be difficult to express.

The Tree Test

The tree is a projective test.  It is based on the assumption that the tree form with its symmetrical construction around a central axis can be used to interpret the projection of psychic content.  As a non-threatening test and easy for children, it adds to the battery that is designed to describe the personality.

The Personality Assessment Inventory

It is a self-administered objective inventory of personality designed to provide information on critical clinical variables.

The Minnesota Multiphasic Personality Inventory-2

It is a broadband test designed to assess a number of the major patterns of personality and emotional disorders.  It is a self-administered objective inventory designed to provide objective scores and profiles determined from well-documented norms.

 The Clinical Multiaxal Inventory-III

It is a self-administered inventory designed to profile the respondent along certain scales that include basic personality styles, pathological personality syndromes and symptom disorders.

The child was not questioned by the Clinical Psychologist about the proposed relocation to France.  However, the following conclusions were drawn from the opinion of the psychologist based on the abovementioned tests are of importance. They were:

• How the child experiences his mother the applicant as his primary care-giver.

•  The child was equally bonded to both his parents despite the difference in the nurturing responses.

•  Although he has a bonded relationship with his stepmother and a dilute relationship with his stepfather when compared to other adult relationships there is nothing unhealthy in that relationship.

•  He experiences all adult relationships in his life as safe and secure.

•  His relationship with his younger half-brother is a positive and healthy relationship.  He does not evidence any jealousy or sibling rivalry.

The child has internalised that he had two families and that he can happily reside within each.

•  The mother has evidenced good parenting decisions in that she has facilitated good contact between the child and his father and has worked constructively and positively with the fact that the child has two sets of parents and two home bases.

•  There is no historical evidence of malice or interference in the manner in which she has worked with the respondent as the parents of the child.

•  Both the mother and the father responded to all assessments tools with a positive test taking set.  They both evidenced no clinical pathology that would preclude them from performing their parental roles.

•   The father’s reticence and opposition to the child’s proposed relocation is bona fide, appropriate and understandable given the nature of his relationship with his son.

•  There are no negative findings on both step-parents that could preclude them from playing a meaningful role in the upbringing of the child.

In support of his opposition to the application the father said that the child had an extended family in the Republic of South Africa with whom he has and maintains a close relationship and is exposed to them on a regular basis.

The child on relocation would have to learn a new language being French.  There was evidence that he had already commenced doing so whilst in South Africa.  The mother enrolled him at a French school in Johannesburg. The father promoted the aspect of a new language as an obstacle to the child’s development. The court did not agree with the father’s contention.

THE BEST INTEREST OF THE MINOR CHILD

In determining what is in the best interest of the minor child a Court must decide which of the parents is better able to promote and ensure the child’s moral, physical emotional welfare whether it is in South Africa or in France.

Section 7(1)(a)(i) and (ii) of the Children’s Act refers to the personal relationships between the child and the parents or any specific parent and the child and any other care-giver or person relevant in those circumstances.  The personal relationship between the child and his parents were excellent.  This was confirmed by the clinical psychologist as well as in the interview report of the child by the Family Advocate when he said the following:

It appears as if the parties are the significant people in the child’s life.  It appears as if he looks for comfort from both parties if he is in distress.

There was no adverse report about the personal relationship that the child had with his stepfather and his stepmother.  The fact that the relationship was not on the same level was explainable by the fact that his stepmother has known the child for a longer period than the stepfather.

Section 7(b)(i) and (ii) refers to the attitude of the parents or any specific parent towards the child and the exercise of parental responsibilities and rights in respect of the child:

•  As regards this standard requirement both sets of parents exhibited a good attitude towards the child.  The mother has not only been the primary care-giver and provider for the minor child since his birth.  The stepfather has taken special interest in the child and teached him the French language.

•  In the report of the Family Advocate it was reported that the father confirmed that the child was happy at his new French school.  

The court regarded Section 7(1)(d)(i) and (ii) most important and crucial for a decision in this matter.  In this section an enquiry is undertaken regarding the likely effect on the child of any change in the child’s circumstances including the likely effect on the child of any separation from both or either of the parents or any brother or sister or other child or any care-giver with whom the child has been living.

Section 7(1)(f) deals with the need of the child to remain in the care of his or her parent’s family and extended family and to maintain a connection with his or her family, extended family, culture or tradition. The mother has always been the primary care-giver of the child.  The father admitted and conceded this and has in no way said that the mother was incapable of carrying out her duties as the child’s primary care-giver.  It therefore did not matter whether she was the primary care-giver in South Africa or in France.  Her ability to at all times act in the best interest of the minor child was unquestionable.  The mother said that the father and the child had a close relationship and spoke to one another telephonically. The father argued about the loss of contact with his and the mother’s extended family in South Africa if the child relocated to France.  The clinical psychologist says that the child would lose the input of his extended paternal family who have become his friends (cousins) and the connection that this relationship offers. He has become used to this resource and would not immediately or necessarily over time replace this source.

Besides contact with the extended family it was not been demonstrated by the father how it will be in the best interest of the child that he should stay in South Africa in order to maintain contact with his cousins.  There was no evidence that the cousins spent extended periods with each other in contrast it seems as if this is limited to weekends or holiday visits by the families.  The loss of this contact was unlikely to negatively affect the child.

The welfare of any child is best served if that child has the good fortune to live with both parents in a loving and united family. In this case that was not to be.  The mother and the father broke up in 2006 and they considered that to be in the best interests of themselves to live separate lives.  They did not at that stage anticipate or foresee that their separate lives might take them on different paths. The move to France was bona fide.

The steps that the mother took leading up to the application had shown that there was no malice.  She had taken the decision in the best interest of the child and her family and her undertaking did not to estrange the child from the father and could not be doubted in view of her past record.

The mother demonstrated that it would be in the best interest of the minor child to relocate with her rather than let him stay in South Africa with the father.

The interests of the child are paramount in all matters relating to children.  It is the ultimate determinant.  Section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 reads as follows:

A child’s best interests are of paramount importance in every matter concerning the child.

In the matter of J & J 2008 (6) SA 30 (C) it was decided that a court as the upper guardian of minors are empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to deciding the issue which is of paramount importance the best interest of the minor child.

In Terblanche v Terblanche 1992 (1) SA 501 (W) at p 504C-D His Lordship Van Zyl J said the following:

From this it follows that, when a Court sits as upper-guardian in a custody matter, it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.

In the matter of Maryke Cunningham (born Ferreira) v Daniel Johannes Jacobus Pretorius (unreported GNP Case No. 31187/08) Murphy J concluded as follows in respect of the loss of contract by the non-custodian parent:

Perhaps the most vexing of the issues in balancing all relevant factors is the practical difficulty and expense involved in B having contact with the respondent if he relocates and the substantial impact it is likely to have on B’s right to maintain a meaningful personal relationship with his biological father – Section 7(1)(e).  In the modern world, marked by globalisation and increased mobility, when marriages break up, one parent’s interests invariably will have to yield to those of the other.  When the balance of factors (in this case the age of the child, the bond, the favourable environment and opportunities available at the place of relocation and the custodian parent capacity) all favour the custodian parent, the best the court can do is to ensure that meaningful contact and access continues with the non-custodian parent albeit in a less satisfactory manner and will not be thwarted by the non-custodian parent.

The Clinical Psychologist notwithstanding the fact that she had done extensive tests and consultation with all the stakeholders in this matter concluded that a firm recommendation was extremely difficult as this is indeed a difficult matter and left the decision to the Court.  On the other hand the Family Advocate and the Family Counsellor reached a conclusion that the child should remain with the father in South Africa if the applicant relocates to Paris.

The recommendation by the Family Advocate and Counsellor was rejected as it was wanting and unconvincing.  A Court must and has decided the issue of the best interest of the child itself and is free to reject any contrary opinion on that question expressed by any expert.

It is so that the removal will undoubtedly cause some disruption to the relationship between the child and his father.  As a result of the relocation his rights of contact will be drastically curtailed and the child will be deprived of the advantage of being in close contact with his father during his early boyhood stage leading up to adolescence.

No court can predict the future with certainty. The Honourable Nugent J as he then was expressed the following in the matter of Godbeer v Godbeer 2000 (3) SA 976 at p 981J:

The respondent and the applicant considered that it was in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. I do not think the applicant can be expected to tailor her life so as to ensure that the children and their father have ready access to one another. That would be quite unrealistic. The applicant must now fend for herself in the world and must perforce have the freedom to make such choices as she considers best for her and her family. She is undoubtedly fully aware of the value to be placed on close contact between the children and their father and I think that is borne out by the nature of the access arrangements which have existed until now and the ease with which they have been exercised.

The passage referred to above was in the court’s mind appropriate in many respects with the facts.  The application succeeded.

Divorce – Don’t play chess by using your children as pawns

DIVORCE – Don’t play chess by using your children as pawns

This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.

So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities.  This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start.  Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.

Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.

About the Author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals.

 

Divorce and Parenting Plans

The Children’s Act offers parenting plans as a method to regulate and assist parents to agree how to exercise their parental responsibilities and rights.

Section 33(1) of the Children’s Act provides that co-holders of parental rights and responsibilities may agree on a parenting plan that sets out the method and mode of how each parent will exercise his/her rights over the children. Parenting Plans must comply with the best interests of the child standard.

It frequently happens that one parent will experience difficulties in exercising his/her parental rights, with the other parent deliberately blocking contact or frustrating it where no parenting plan exist or where a court order was made years ago that did not keep track or became outdated with the changes in our family law over the years. Where parents do struggle or where they experience difficulties to exercise these rights, mediation in terms of the Children’s Act is a prerequisite. The Act stipulates that an aggrieved parent must first seek the assistance of the Family Advocate, social worker or psychologist. Alternatively they must go to mediation facilitated by a social worker or other suitably qualified person.

The Children’s Act discourages parents from approaching the court as a first resort when they experience difficulties in exercising their rights and responsibilities.  The Act use the word “must” in section 33(5) which means that parties’ are compelled to refer to seek assistance or mediation prior to embarking on court action. The Act also lays down certain guidelines concerning parenting plans, for example that it must be in writing and that it must be registered with a Family Advocate Office or made an order of court. To register a parenting plan at the office of the Family Advocate a prescribed form must be used.

Once a parenting plan is in place it may be amended, suspended or terminated. Where a plan was registered at the office of the Family Advocate the parties must apply to the Family Advocate Office to amend, suspend or terminate the plan and in the event that it was made an order of court an application should be made to court to vary the plan.

One must distinguish between Parental Responsibilities and Rights Agreements (PRR) made in terms of section 22 and Parenting Plans in terms of section 33 of the Act. PRR plans are usually entered into where a mother or other person comes to an agreement with the biological father of the child and encompass an agreement with a party that did not have rights in terms of section 21.  Such an agreement confers rights and the agreement is typically between unmarried parents.

Parenting Plans on the other hand are usually entered into by co-holders of PRR Plans, the agreement delineates existing rights and an attempt to agree is a prerequisite in going to court. Typically, such a plan is entered into by divorcing parents and an unmarried father who does qualify in terms of the Act.

Section 35 of the Act contains a provision with its aim to prevent a parent from frustrating the other parent’s rights. If a person under whose care a child is refuse contact with the other parent who is also a co-holder and do so contrary to a court order or registered plan, such person could be found guilty of a criminal offence. Such person can be liable on conviction to a fine or imprisonment for a period not exceeding one year. A person, with whom a child lives, must also notify the other parent of a change of address. Failure could result in a criminal offence.

About Divorce Attorney Cape Town:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce Ends Marriages…But Families Endure…

Divorce Ends Marriages…But Families Endure…

“Children need and deserve the love, care,
and support of both their parents”

Divorce is said to be one of the most traumatic experiences in the life of a person. Not only is it traumatic for the spouses but also for the children. In our current society it is not difficult see what the effects of divorce have on spouses, families and children. The ripple effect of a divorce rolls into the lives of most of the extended family members and close friends. As a family law attorney I see the effects of divorce every day. What parents should realise is that although the spousal relationship may end at divorce, the parental relationship will endure for a lifetime. The more acrimonious the break-up the more difficult will it be for the parents to parent their children in future. It is therefore of utmost importance that spousal conflict should bow for the sake of the best interests of the children, sooner rather than later. As a matter of fact, all that children want is to be happy. Unfortunately in many divorces it is the parents that act like children.
Here are some pointers for parents:

1. Try to resolve your conflicts without putting your kids in the middle. Be objective about your children’s needs (do not confuse them with your own). Resolve a conflict sooner rather than later.
2. Treat the other parent with respect, like you want to be treated. Set an example for your children. Our children imitate our behaviour. The disrespect that you show toward the other parent will be played out by the child in his own life. It’s extremely important for a child’s healthy development to have respect for authority figures, including both parents.
3. Know your boundaries. When it comes to your children, it’s sometimes very difficult to tell yourself what they’ are doing while they are with the other parent, well it is actually none of your business, unless they will be physically or psychologically harmed, it probably is none of your business.
4. Communicate regularly about the children with the other parent. There are lots to share. When children are still small, the other parent needs to know the basics when parenting responsibilities are being transferred. The worst-possible scenario is that a lack of communication may lead to a child not being picked up after school or day care, or important medical treatment being disrupted.
5. Demonstrate positive conflict resolution to your children. You can use conflict as an opportunity to show your children how to resolve issues in a responsible manner.
6. Do not allow all of the parenting tasks to fall on one parent. Things that are out of balance usually don’t work well. Don’t expect the other parent to be in charge of all of the communicating, extra purchases for your child or all of the discipline that needs to be done.
7. Be a consistent parent – in disciplining, feeding and caring for your children. It really makes transitions from one household to the other easier, it minimizes the outbursts from children after visits at the other parent. Respect the other parent’s parenting approaches, and do recognize that while consistency is optimal, differences are okay. Children can distinguish that something that’s okay at Dad’s house may not be okay at Morn’s house.

The various ages and how children react to divorce:

Zero to One Year

Babies at this age begin to form attachments, so it is important to minimize changes and disruptions in their lives and show them love and affection. It’s important that they spend time with both parents so they can form attachments with both. Signs of distress can be excessive crying, problems with feeding or sleeping, and withdrawal.

One to Three Years

At this age children become more mobile and gaining communication skills. They are also able to recognize close adults, so they are sensitive to separation. These kids need consistency in routine and patience from their parents to safely explore their environment. Signs of distress are nightmares, mood changes, and changes in toileting.

Three to Five Years

Kids at this age believe they are the center of the universe, and so they feel responsible for the family split. Parents need to be positive during exchanges, keep a consistent schedule, and tell the kids that the divorce or split is not their fault. Signs of distress include toileting and sleep problems.

Five to Ten Years

Kids at this age are entering school and forming relationships outside the family. They may try to reunite parents and may feel and act out intense anger. Parents should develop a schedule that allows for consistency with school and extracurricular activities, and support their kids’ interests and friendships. Signs of distress at this age include expressions of anger, drop in school performance, sleep problems, and physical complaints.

Ten to Twelve Years

Pre-teens tend to see things in black and white terms, and so may align themselves with one parent. Parents should encourage these kids to love both parents and support their kids’ school and other activities. Signs of distress in pre-teens may include loss of interest in friends, becoming a perfectionist, depression, and isolation.

Early Adolescence (Thirteen to Fifteen Years)

Teens will often prefer to spend more time with friends than family, so allow room in the parenting plan for this. These teens need firm but fair guidelines and positive role models. They may also want to be included in creating the parenting plan. Signs of distress in this age group may include excessive anger or isolation, difficulty with school or peers, alcohol and drug use, and sexual acting out.

Late Adolescence (Sixteen to Eighteen Years)

Teens in this age group are learning to be independent to prepare for the separation from their parents, but they still need support and rules. These teens may also want to be included in creating the parenting plan. Watch for signs of distress, including reduction in school performance, difficulty with peers, alcohol and drug use, and sexual acting out. If parents aren’t able to talk, your teen can say, “I’m spending tonight at mom’s (dad’s) house,” and you won’t know if they’re really there.

New Research Gives Insights into Guidance about Parenting Plans

New Research Gives Insights into Guidance about Parenting Plans

Is shared parenting the best arrangement for kids? Should infants and toddlers be shuttled between two homes? Is it important to include children in decisions about care and contact? These are just some of the difficult questions facing parents, attorneys, judges, mediators and others who are involved in navigating children through the divorce process.

Recently, several numbers of reports have been released that summarize the state of the research on parental issues. The results are surely not simple, but they provide some really helpful insights into what parents need to consider in managing parenting following a divorce.

Marsha Pruett, Smith College of Social Work, provides a general set of guidelines for children at different ages. She notes that children at different ages have varying needs and differing abilities to navigate through and cope with the variations in changing families. She notes further that equal time in parenting is not always the best arrangement for families. She also reminds parents, “It is the quality of time and parenting – not the quantity – that is more highly related to closeness between parent and child.” According to her, “The absolute amount of parenting time should be emphasized less than a plan that allows for a schedule that enables both parents to feel and act engaged and responsible.”

A particularly challenging divorce situation is one in which the children are very young–infants and toddlers. There has been much debate about the appropriateness of overnight stays and shared parenting arrangements in general. Jennifer McIntosh has been studying this issue that provides a good summary of the research evidence to date. There is lots of evidence that parenting during the first 3 years of a child’s life is critical to health development, particularly in how child manage their emotions and cope with stress. McIntosh’s summary of the current evidence is that children in the first 3 years of life should not involve overnight care in two homes. She also notes that young children’s attachment to the non-residential parent can be achieved through regular contact that involves “warm, lively, attuned caregiving.” In short, children’s development depends less on whether or not children sleep in two homes, than on the quality of the parenting.

There are three primary ways parents can help insure that their children have fewer difficulties following divorce writes, JoAnne Pedro-Carroll, “the degree and duration of hostile conflict, the quality of parenting provided over time, and the quality of the parent-child relationship.” She summarizes the important research findings that focus on each of these factors. She emphasized that it is important for children to have rules and routines that give them a sense of security. Likewise, they need to know that they are loved and cared for by hearing the words, but also by actions that reflect active and engaged talk and play. And they will thrive better when their parents manage their own strong emotions and conflicts. She recommends that parents reframe their relationship to a more business-like model in which the goal is the well-being of the children. For high-conflict parents she describes a model of parallel parenting that can best serve children and minimize conflict.

Source: Huffington Post

International abduction of minor children a South African Law Perspective

International abduction of minors a South African Perspective

Article 3(b) of the Hague Convention on the Civil Aspects of International Child Abduction (1980), which is incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), provides that the removal or retention of a child is to be considered wrongful if, among others, at the time of the removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

In terms of article 13(b), the authority of the requested state is not bound to order the return of the child if the person, institution or other body in the other state that opposes the return or retention establishes that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386 (GNP) the second applicant, the father, and the respondent, the mother, were married and living together with their minor child in the United Kingdom (UK). After several heated arguments the parties agreed to divorce and that the respondent would return to her native South Africa with the child. Alleging that the respondent agreed to return with the minor child to the UK after attending a wedding in South Africa and as she failed to do so she had unlawfully retained the child in this country, the second applicant (with the help of the first applicant, the Central Authority of South Africa) applied for a court order for the return of the child to the UK. The application was dismissed with costs.

Molopa-Sethosa J said the fact that the second applicant was prepared to stay away from the minor child, who was only 17-months-old at the time, for at least six months when the child was in South Africa with the respondent (who was during that time considering whether reconciliation with the second applicant was possible) was not indicative of a close bond between the second applicant and the child. Furthermore, the child would be exposed to the risk of psychological harm if he were to be returned to the second applicant who did not have the best interests of the child at heart. The fact that since the child had been in South Africa his health improved tremendously was of the utmost importance and could not be ignored.

Best interests and views of a child in international abduction matters:

In Central Authority v MR (LS Intervening) 2011 (2) SA 428 (GNP) the court dealt with the best interests of a minor child and her views in an international child abduction matter. After the death of her mother the minor child of some nine years lived with her biological father in Belgium. Subsequently the two relocated to Los Angeles, in the United States of America (USA), because of the father’s professional commitments.

There the two lived with the father’s new wife. After the child visited her maternal grandmother in Hoedspruit, Limpopo, the grandmother prevented the minor child returning to the father in Los Angeles and instituted an ex parte application to keep the child in this country. She sought, pending the final outcome of the family advocate’s investigation, full parental rights and responsibilities in respect of the minor. Meanwhile, the father sought the return of the child to the USA. The court dismissed the father’s application, but ordered the grandmother to pay costs because of the unacceptable way she instituted ex parte proceedings and for not being candid with the court.

The Effects of Divorce on Children

The Effects of Divorce on Children

As a family law attorney I am involved on a daily basis in stories about divorce or care and contact issues between parents and children and many times I see how the loss of a parent has affected the lives of children. Although my approach is  always clinical, I’m often saddened by these stories, but in awe as to how many of these adult children have risen above their loss to develop an emotionally healthy outlook on life.

It was with great interest that I watched psychotherapist, Gary Neuman, who appeared on one of Oprah’s shows. Gary interviewed two young children, a brother and sister; they were abandoned by their mother when she divorced her husband, their father. Both children were crying, and yet were remarkably articulate in their description of their thoughts and feelings regarding their mother’s abandonment of them due to divorce. While parents do divorce each other, they don’t divorce their children.

Children nonetheless are the ones who live out the divorce because their day-to-day routines, not to mention their emotional lives, are so deeply affected by it. And of course, the impact of being estranged or abandoned by a parent as a result of divorce can have far reaching and long lasting consequences on their lives. A number of experts on children of divorce question whether the abandonment or estrangement necessarily leads to lifelong behavioural and emotional scarring. What they do find is that one parent’s love, nurturing, and support, can go a long way to helping a child overcome many of the emotional and behavioural issues that otherwise could ensue.

It is a fact that divorce can affect the closeness of the parent versus child relationship for a number for reasons and can take a serious emotional toll on the child. Joan Kelly, one of the America’s foremost experts on children of divorce, defines an estranged relationship between a parent and child as a diminished, thinned out, and less meaningful bond. She says that 24% of children in the United States from divorced families are seeing a parent once a year, if at all and one may assume that this figure is even bigger in South Africa.

In his research, Robert Emery Director of the Centre for Children, Families, and the Law at the University of Virginia, found that non-residential fathers saw their children only 4 times per month following divorce, and about 20% of children had no contact at all with their fathers 2-3 years after divorce. Other research have concluded that, many students of divorced parents who had a limited relationship with their fathers while growing up stated that they would have liked more contact with their fathers during their adolescence, would have liked to have been closer, and wanted more time together. It is a fact that a parent’s rejection of a child or a parent’s inconsistent presence could drastically affect a child’s self esteem.

One good parent who is loving and nurturing can overcome the negative effects of losing the relationship with the other parent. While the emotional impact on a child resulting from the loss of a parent’s relationship could be significant, it doesn’t have to be disastrous.

The following advice should be considered:

• Family is not a just about biology. Find role models who will support and care about you. Be there for your kids.

• Be reliable, pay maintenance, show your love, and do what you say you are going to do.

• Provide help. Initiate the conversation about their loss of the relationship with their other parent.

• Lend an understanding ear. Don’t lecture, and don’t feel you have to have the perfect answer.

• Honesty. Find help for what to say to your children if you don’t know what to say. Children need to be heard.

• You can’t control what the other parent does; you can only control yourself.

• To help your children get through their pain, ensure that they feel heard and listened to –that gives them value.

You want your children to perceive themselves with their own goals and aspirations, independent of their status as the children of divorce.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

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