Divorce Attorney Cape Town


CHILD ABDUCTION Source: http://voices.news24.com/bertus-preller/2012/12/december-the-month-when-child-kidnapping-is-on-the-increase/ December is not always the month of fun, happiness and laughter for all parents. For some it could also be a nightmare, particularly when a child is abducted. It is typically in holiday season when abduction of children is on the increase. The increase in parental child abduction cases is a major cause for concern. Before or during school holidays it is one of the most common times for a child to be abducted by an estranged parent. Parental child abduction is not faith or country specific. The number of children abducted and taken abroad by an estranged parent has risen by 88% in just under a decade, according to new government figures released in the United Kingdom. In the UK it is estimated more than 140,000 children go missing every year, one every three minutes. The statistic was calculated by the Child Exploitation and Online Protection Centre, which includes teenage runaways, parental abductions and kidnappings. According to the statistics last year alone the UK Foreign Office’s Child Abduction Section fielded an average of 4 calls per day to its specialist advice line, more than half of which were new cases. Cases were worked on in 84 different countries, showing just how widespread the problem has become. Each year, 800,000 children are reported missing in the United States, including some who are lost, injured, have run away from home or are abducted. Of those who are abducted, 200,000 are taken by family members, typically during a custody battle, while 58,000 involve non-family members who are familiar to the child and who typically have targeted the child. Trafficking in children is a global problem affecting large numbers of children. According to UNICEF some estimates have as many as 1.2 million children begin trafficked every year. According to figures that was released by the South African Police Service Missing Persons Bureau a child goes missing every six hours in South Africa, it means that 1460 children per year goes missing. According to Missing Children South Africa an organisation registered with Department of Social Development at least 13% of these children are never located. There are 3 types of abductions: When a stranger takes a child away for criminal purposes (such as sexual assault or ransom – the latter would be classified as a kidnapping in South Africa). When a child is stolen to be brought up by the abductor. When a parent removes a child from the other parent’s care. Viewing the Facebook profile of Missing Children SA one grasps how common child abduction in South Africa really is. There are plentiful posts of children being abducted by one of the parents.  Not long ago there was the case of Stefano Cavinato an Italian American father of a little two year old boy called Matteo Cavinato. Matteo’s mother a South African and was living in the United States since 1995. During 2011, she fell pregnant from a man of Botswana and wanted to move to South Africa with the child. The parties became embroiled in litigation in the United States to determine care and contact (custody) over for the child. An interim order was granted for the parties to have joint custody and residence. However, on 4 February 2012, the mother, Nontobeko Tsotetsi, boarded a plane in the United States without the father’s knowledge or consent, using a false passport for the child and arrived in SA the next day. Her conduct was in breach of the Hague Convention on International Child Abduction, and the South African Central Authority (Family Advocate), acting on instruction of the American Central Authority, brought an application for the child to be returned to the USA so that the United States court could continue to determine issues the parental responsibility disputes. The High Court in Cape Town then was then approached and the return of the child was ordered. However, the mother sent the father a text message to say she would rather die, and disappeared with the child. The police, courts, Family Advocate and private investigators were all involved in the search eventually the mother and child was found and the child was returned to his father in the United States. Phillip Dexter well-known politician also opened a case of abduction against his ex-wife last year for apparently leaving the country with his five-year-old daughter without his consent. Many countries have adopted the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. The Hague Convention aims to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of a child to his/her country of habitual residence. As a matter of fact, the child can remain in the care of the abducting parent, if they choose to return together with the child. The elements of a cause of action for the return of an abducted child under the Hague Convention are that: – the child was habitually resident of the country from which the child was abducted; – petitioning parent had either sole or joint rights of custody of the child either through a custody order or de jure (by operation of law); and – at the time of removal, petitioning parent was exercising those rights. Bertus Preller Family Law Attorney Abrahams and Gross Inc. Ebertus@divorceattorney.co.za Twitter@bertuspreller

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.


Parenting Plans and Divorce in South Africa

Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.

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