Divorce Attorney Cape Town

Same-Sex partners not in a Civil Union – Do they automatically acquire parental rights to children?


An interesting question that arises in South African family law is whether a woman that was in a same-sex relationship (Lesbian) is able to acquire parental responsibilities and rights to a child that was born as a result of artificial fertilisation from the other partner. Where one party is the biological mother of a minor child born after she was inseminated with the sperm of an unknown donor the situation becomes somewhat problematic when the relationship ends and the other partner attempts to obtain full parental responsibilities and rights in respect of the child as contemplated in s 18(2), (3), (4) and (5) of the Children’s Act 38 of 2005 (“the Children’s Act”), including guardianship.

The problems that arise

Our Children’s Act does not provide an applicant in this position with parental responsibilities and rights automatically.  Such parental responsibilities and rights are, however, granted automatically to the mother who is biologically linked to the child as well as to a father who was married (or even unmarried) to the mother at the time if he is biologically linked to the child.  If the biological mother and father were in a permanent life partnership at the time of the birth of their child, the father will automatically acquire parental rights and duties in respect of his child.  In a scenario of a same sex partnership however, one does not acquire such rights automatically even though the parties was in a permanent life partnership at the time of the birth of the minor child.

Essentially, where the other partner is not biologically linked to her minor child, she must utilise the provisions of ss 23 and 24 of the Children’s Act in order to obtain full parental responsibilities and rights despite the parties’ agreement in this regard or their relationship at the time.

In terms of s 18(2) of the Children’s Act the parental responsibilities and rights that a person may have in respect of a child, include the responsibilities and the rights:

  • to care for the child;
  • to maintain contact with the child;
  • to act as guardian of the child; and
  • to contribute to the maintenance of the child.

There is very little reported case law in respect of ss 23 and 24 of the Children’s Act.  The only reported cases in which reference has been made to these sections are Ex parte Sibisi 2011 (1) SA 192 (KZP) and FS v JJ and Another 2011 (3) SA 126 (SCA).  None of these cases dealt with the following questions:

  • When can a second mother/father in a same sex relationship, who is not biologically linked to a minor child, acquire parental responsibilities and rights and can such rights, include both care and contact?
  • Can such a second mother/father acquire full parental responsibilities and rights or are her/his rights limited to that of contact or care?
  • It is submitted that the test set out in Drummond v Drummond 1979 (1) SA 161 (A) regarding when it can be said that a person is living with another as man and wife on a permanent basis is appropriate to define whether or not the applicant and the respondent were in a permanent relationship. Trengove AJA stated that it denotes ‘the basic components of a marital relationship except for the formality of marriage’ and that ‘the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship … in which sexual intercourse, in the case of parties of moderate age, would usually, but not necessarily always, be an essential concomitant. And, in that context, the phrase “on a permanent basis” connotes, in my view, a continuing relationship, one that is intended by the parties to continue indefinitely without change.’

The legislature has recognised the development of the rights of third parties by introducing ss 23 and 24 of the Children’s Act.  The mechanism for the recognition of the rights of parents whose children are born through artificial insemination.

If a Court should hold that the one partner cannot acquire both care and contact (as well as guardianship) of the minor child the Children’s Act and the Court may be discriminating against such a partner on the basis of gender, marital status and sexual orientation.

The use of the word “or” in s 23(1) does not exclude the awarding of rights of care and contact at the same time.  If that should be its meaning it would compel an applicant to launch more than one application to obtain care of and contact with a child.

The common law had not precluded applications seeking the awarding of care or contact.  It is generally accepted that the Children’s Act has expanded on the common law in that it is the first time that the legislature specifically states that any person with an interest may make such an application.

Subsection 23(4) which provides that the granting of care or contact to a person in terms of s 23 does not affect the parental responsibilities and rights that any other person may have in respect of the same child, does not exclude the granting of more than one parental responsibility and right.

The term “care” does not only refer to primary care.  As a co-holder of the parental responsibilities and rights of contact and care the other partner would be party to decision-making and both she and the mother of the child would have to comply with the provisions of ss 30 and 31 of the Children’s Act.

In addition if both have rights of care and contact the parties could conclude a parenting plan and would be compelled to mediate disputes in accordance with the provisions of the Children’s Act and relevant case law.

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

The Law Relating to a child conceived as a result of artificial fertilization

Prior to the Children’s Act artificial fertilization was governed by section 5 of the Children’s Status Act. The provision of section 5 of the Children’s Status Act which treated children as ‘legitimate’ if the birth mother was married but not if she was a partner in a permanent same-sex life partnership was held by the Constitutional Court in J v Director-General, Department of Home Affairs 2003 (5) SA 605 (D) to be unconstitutional. The court found that the impugned provision unjustifiably discriminated against the same-sex life partners on the ground of their sexual orientation. The court cured the unconstitutionality by striking out the word ‘married’ and reading in the phrase ‘or permanent same-sex life partner’.

The  Civil Union  Act  17  of  2006  has  since  come  into  operation. That  Act provides that reference to marriage, husband, wife or spouse in any other law includes ‘civil union’ and ‘civil union partner’. Therefore a child born as a result of artificial fertilisation of one of the parties to a civil union is now treated exactly as a child whose parents are married.

Section 40 of the Children’s Act deal with the rights of children conceived through artificial insemination.  In terms of s 40(1)(a) whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.

In terms of s 40(3) no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child or that person was the husband of such woman at the time of such artificial fertilisation.

Thus the Children’s Act has recognised that a non-biological parent can acquire parental responsibilities and rights in certain circumstances without an application to Court.

What is the situation where the parties did not register a Civil Union

In terms of the Children’s Act, a child born as a result of artificial fertilisation of a  partner  in  a  same  sex  life  partnership  is  regarded  as  a  child  born  of unmarried persons. At first glance this appears to be in contradiction of the decision in the case of J v Director-General, Department of Home Affairs.

However, since the Civil Union Act 17 of 2006 came into operation on 1December 2006, it has been possible for same sex partners to enter into a civil union. If they choose not to do so, therefore, they are treated in the same way as unmarried partners.

An unmarried partner of the birth mother of a child conceived  by way of artificial fertilisation does not automatically acquire parental responsibilities and rights. This is so whether the partner is a man or a woman. The unmarried partner can acquire such rights through agreement (in terms of section 22) or via a court order.

It appears that this scheme was always the intention of the legislature. The South African Law Reform Commission (SALRC) Report on the Review of the Child Care Act (which was accompanied by the draft Children’s Bill) specifically discussed whether one partner in a same sex relationship should also automatically acquire parental responsibilities and rights in respect of his or her partner’s biological children. Although at that time Civil Unions by same-sex partners were not permitted under the law, the SALRC recommended that the partner in a domestic relationship can acquire parental responsibilities and rights either by agreement with his or her partner or on application to the court.

Summary

A party in a same-sex relationship, after breakup has no automatic parental responsibilities and rights in terms of sections 19-21 of the Children’s Act. Despite the equality provision of the Constitution, the law treats her differently from a biological father simply because she has no biological link to the child. This may not be unfair discrimination because biology plays a real and important role in the determination of parental responsibilities and rights.

The law also  fails to provide an Applicant with automatic parental responsibilities and rights via section 40, which deals with children conceived by artificial fertilisation. If the couple had entered a civil union, the Applicant would have enjoyed automatic parental responsibilities and rights. Despite the judgment of J v Director-General, Department of Home Affairs this differentiation may not amount to unfair discrimination because subsequent to the Civil Union Act coming into operation the Applicant and the respondent could have entered into a civil union, but did not do so. They are thus treated under section 40 as an unmarried couple, in the same way that a heterosexual unmarried couple is treated.

In relation to both of the abovementioned apparent impediments an approach to interpretation should be utilised that accords with the best interests of the child principle, and is within the power of the High Court as upper guardian of children.

Once  an Applicant  is applying  for a  court  order regarding parental responsibilities and rights, section 29(3) becomes applicable:

  • According to section 29(3) the court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine or may refuse the application but an application may be granted only if it is in the best interests of the child.
  • Furthermore, section 29(4) provides that when considering such an application the court must be guided by the principles in chapter 2 of the Children’s Act to the extent that they are relevant.

A court should therefore pay careful consideration to the best interest of the child standard in section 7 – these are the issues that a court must have regard to when making a decision that affects the best interests of the child. Section 9 states that such best interests are of paramount consideration.

Over and above those considerations, the court should also take note of the special circumstances of each case, in particular for instance the fact that the parties planned the conception of the child together.

Only time will tell how our courts will interpret the issue.

My thanks to Advocates Julia Anderssen and Adv Rheta Maass from the Cape Town Advocates Bar for their valuable input.

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. 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.

 

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.

Parental Alienation, are you guilty?


There are thousands of divorces every year in South Africa…

A sad statistic and topic that is all by itself. But these numbers don’t even come close to reflecting the pain and heartache that divorce brings with it. Most of the time, both spouses feel hurt, anger and possibly even betrayal. If not by their spouse, then by the hopes, dreams and commitment that they once shared.

If you have ever “survived” a divorce you know exactly what I mean. If you haven’t experienced one then you are most fortunate. The emotions, demands and the decisions that need to be addressed while going through and after a divorce are staggering in scope and importance. It’s a wonder any of us survive.

My heart goes out to anyone that has ever had to rebuild a shattered life and dreams because of divorce. The difficult scenario that I’ve just shared describes a husband and wife navigating through this life changing event. I think we would all agree, when children are introduced into the equation the stakes go up considerably for everyone involved. That’s where the potential for “Parental Alienation” rears its ugly head.

In fact, Parental Alienation is so ugly that very few that very few people even want to admit its existence. They would much rather debate whether it should be classified as a “syndrome” or not. Or assign self-serving motives to anyone who dares to shed light on its deadly impact on children.

No matter what you “label” Parental Alienation, it comes down to this. Any parent that deliberately and maliciously attacks their child’s other parent, and does everything they can to destroy the relationship their children have with that parent is abusing that child.

Now I’m not talking about occasionally venting about your ex-spouse (although even that is not healthy for your children), I’m talking about a wilful desire to use your children to “hurt, control or attack” your ex-spouse by turning the children against him or her.

Most of the time these attacks are hidden behind the guise of “protecting” the children from their “father or mother. In reality there are very few situations (although there are some) where the children are in need of protection at all.

What about the children? Do they deserve to be caught up in a deadly game of hate and manipulation just to make one of their parents feel better about themselves or meet their needs? What about our God-given (or at the very least our humane) responsibility for their welfare?

The sad fact is that the same parents that would probably fight to the death to shelter their children from harm end up being a perpetrator that inflicts some of the deepest wounds their child will ever receive. It boggles the mind and daunts the spirit to even consider such a thing! Doesn’t it?

The statistics are bleak concerning children of divorce to begin with. The incidence of depression, fear, anger and feelings of pain directly related to divorce and a “broken” family are significant by anyone’s standards. The statistics for children that have successfully been alienated from a loving parent is even more staggering and alarming!

Can you imagine how horrible it must be for a child to be torn from the loving arms of a parent that has loved, protected and provided for that child since the day they were born? Someone that comforted them, spent time with them and nurtured them for as long as they can remember. Now for reasons they can’t comprehend, that parent is suddenly “the enemy”.

What must it be like to be told (or at the very least strongly encouraged) that they must “hate mommy or daddy” to keep the alienating parent’s love and acceptance. What must go through their fragile little minds when they are taught to call the parent they once looked up to and respected by their first name, essentially taking them out of the role of parent in that child’s life?

How does a child feel when every reference made about one of their parents by the alienating parent to others, is demeaning and cruel. I would speculate that it makes them embarrassed by and resentful of the targeted parent. It makes them hate a part of themselves…

It is trite in family law that the ‘best interests’ of each child is paramount in determining the contact and care of and access arrangements to such child. Such interests have been described as ‘an elusive concept’.

In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

  • the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child;
  • the capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;
  • the ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;
  • the capacity and disposition of the parent to give the child the guidance which he requires;
  • the ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature comforts’, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security;
  • the ability of the parent to provide for the educational well-being and security of the child, both religious and secular;
  • the ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development;
  • the mental and physical health and moral fitness of the parent;
  • the stability or otherwise of the child’s existing environment, having regard to the desirability of maintaining the status quo;
  • the desirability or otherwise of keeping siblings together;
  • the child’s preference, if the Court is satisfied that in the particular circumstances the child’s preference should be taken into consideration;
  • the desirability or otherwise of applying the doctrine of same sex matching;
  • any other factor which is relevant to the particular case with which the Court is concerned.

Source partly from: http://www.keepingfamiliesconnected.org

Guardianship who will look after your children when you pass away?


People don’t usually want to think about death, but as a parent, what will happen to your children after you passed away? As a parent you will have to take steps now to secure your children’s future care.

The following scenario happens all too often. Judy and Mark divorced after having three children. Mark had an affair and left Judy for someone else. Judy is now in a relationship with Ben and she and the children lived with Ben for the past 5 years in Cape Town. Ben is an awesome father and has taken care of the children as if they were his own. Mark paid little maintenance and did not show much interest in the children for the past few years. Judy then passes away. Within a few weeks after her death Mark appeared on the scene demanding that children live with him and his new wife in Johannesburg. Ben is devastated as loves the children and the children are devastated too.

The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.

Section 27 of the Children’s Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don’t have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child’s expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.

So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.

Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

In terms of Section 31 of the Children’s Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.

Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

If you die and the other parent is also no longer alive the grandparents on either side may apply for the child’s care or guardianship.

Written by:

Bertus Preller

Family and Divorce Law Attorney

Abrahams and Gross Inc.

http://www.divorceattorney.co.za

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