13 Jul

Graeme Smith: A Father In Peril

Ivan Zartz was recently asked by YOU Magazine to comment on the recent spat between Graeme Smith and his wife, Morgan Deane. Morgan, the Irish pop singer whom Graeme Smith was infatuated with after the 2011 Cricket World Cup, gave birth to Gaeme’s two children, a girl and a boy in July 2012 and July 2013 respectively. What seemed as a match made in heaven quickly became a nightmare when news started circulating about Graeme’s extramarital affairs and the fact that the couple were fighting. By February this year, the couple formally announced their plans to divorce.

A situation that many deem to be caused by the ex-Proteas captain has developed into much domestic as well as international support for the Irish lady. Her comments on social media regarding her thoughts on her husband have amassed sympathetic responses from the public. But herein lies the tragedy. Much of the social-smearing can likely be a sign that Morgan may eventually alienate her children from their father.

Currently the children spend three days a week with Graeme, believed by Morgan to be too much time considering that she is the primary caregiver. Morgan also has an issue with the fact that the children’s Irish passports are currently in the hands of a third-party lawyer. Graeme should have access to his children three days a week because, not only is he their father, but he is also their provider, and will likely provide maintenance support after the finalization of the divorce. Graeme also has the right to put his children’s passports in the hands of a third-party lawyer if he believes that Morgan may attempt to take her children to Ireland.

Ivan Zartz recently had to travel with a client overseas to England to help in bringing back a child that was taken there by their one parent. Zartz argues that Graeme could be in a similar situation between Morgan and their children, and this is the reason marking his application to the High Court for a third-party lawyer to hold onto the passports.

It must be remembered that fathers have same rights to mothers in the case of custody over their children at the onset of divorce. Although modern trends show that the mother is at an advantage, Ivan Zartz’s is unbiased in his approach to helping his clients. For more information regarding child custody, contact Ivan Zartz attorneys today!

10 Jul

Hardship For Fathers

DOES A FATHER HAVE TO PAY A THIRD PARTY TO SEE HIS CHILD?

A recent case that I have been involved in demonstrates one of the sad realities of parental alienation.

The biological father of a child of 9 who is now 14 years of age had been alienated from the child by the mother. As a result of his lack of contact and in order to re-construct the contact between my client and the minor child it was proposed that his contact to the minor child be supervised by a third party. This proved to be impractical because there was no friend of the father who the mother trusted, and the father could not afford to pay for a social worker to supervise the visits.

It is a sad fact that there is still a grave shortage of skilled people to supervise re- constructed contact resulting in many fathers, through lack of means, abandoning contact to their children, particularly in the type of case referred to above.

The shortage of social workers in South Africa is major social problem in our country. A recent government study identified that there is a shortage of around 66 000 trained social workers required to successfully implement the Children’s Act; a 77% shortfall!

Unfortunately the department of social workers who should provide a social worker to supervise access have insufficient resources, so the absurd situation arises where a father has to pay to see his child.

For more information regarding child custody in South Africa, contact Ivan Zartz Attorneys.

06 Jul

Parental Alienation

The social science research advises that the most salient factor in determining risk for poor developmental outcomes for children subject to parental divorce is the level of conflict between parents.

High conflict separated parents, at least one parent, if not both holds a great deal of animosity which can lead to parental alienation. One or both parties will vilify the other. One or both will also present themselves as holding the best interest of the child on a greater basis than the other. Conflict tends to be unremitting and as soon as one issue is resolved, several others may surface. There may or may not be a realistic basis to some or all the complaints one parent has of the other. Children in these situations tend to be caught in the middle. They are often used as go-betweens and are at risk of having behavioural and emotional psychological issues that interfere with their daily functioning.

High conflict separated parents will in some instances poison the minds of the children to such an extent that all attempts by one of the parties to have contact to the minor children will be frustrated. The minds of these children are poisoned to such an extent that any ongoing relationship with the alienated parent will be severally jeopardised and will only be partially repaired by intense psychotherapy. The alienated parent inevitably gives up all hope of having proper contact to the child.

For the high conflict separated parents, the saying “tall fences make good neighbours” should guide intervention. The goal with high conflict separated parents is to structure a parenting plan that reduces the necessity for parental communication, contact and problem-solving. To affect this, the parenting plan tends to be highly structured and somewhat rigid. Parents are not to rely upon each other. Each will have their own supports available to minimize either having to depend on the other understanding that all points of contact provide risk for re-engagement in conflict – poison to the children.

Unnecessary Damage

In my experience when children are drawn into these battles between divorced and/ or estranged parents it says a great deal about the obsessiveness of the parties. Normally, both parents use the child as a punching bag to vent their frustration arising from the consequences that follow the breakup of a relationship, i.e. to rid themselves of their inadequacies, anxieties and disappointments. In the leading cases dealing with children in bitter divorces, i.e. asking children to express their views in court, often leads them to be subjected to a battery of questions from psychologists. The children in the main are very scarred by the legal and psychological process they have to undergo in these cases and they themselves will probably need therapy for the rest of their lives.

The parents are never satisfied by one court’s decision and drag the children from one Court to another until their financial resources are exhausted. The wishes of children should be respected, but courts should be sensitive in using children to give evidence in contact cases. There is no doubt, and this may sound repetitive, that it is the children who are the casualties of the war between the parents.

The Case of the Brave Child

In the leading case dealing with child alienation, the case illustrates that while in certain circumstances children, the wishes of children depending on their age should be heard. The court has to assess matters in which children’s opinions are expressed very carefully.

The matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of s 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole custody. The court went accordingly against the wishes of the child.

Additionally, there is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child which states that the best interest principal supersedes any wishes or opinions the child may have. In considering what is in the best interests of the child. A convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child.

Necessity for a Psychologist

In all parental alienation matters, it is necessary for a child psychologist to be agreed upon by the legal representative or by the court to evaluate what would be in the best interest of the child in bitterly contested custody matters. In terms of the Children’s Act, the court may appoint an Advocate or Attorney to represent the child’s best interest. I would suggest that in every matter concerning a child wishing to express their views in court, a trained expert psychologist should be present in court to ascertain the true wishes of the child.

I have a special note to separated parents, please play nicely and if you can’t, then leave each other alone and work through your therapist of intermediaries.