Articles By Ivan Zartz Archives - Ivan Zartz Attorneys

26 Jan

‘Sleepovers’ With Dad

Psychologist Penelope Leach, whose parenting books have sold millions, says that as a general rule children aged four and under should not be separated from their mother and sleepover at their father, if couples have separated.

She says that ‘sharing’ young children puts ‘adult right’s above ‘children’s rights’ and if young children are separated from their mothers and have to sleep over at their father’s house there is “undisputed” evidence that this “reduces brain development” and creates a tendency toward “unhealthy attachment issues”.

In her new book Family Breakdown she says:
“when people say that it’s ‘only fair’ for a father and mother to share their five-year-old daughter on alternate weeks, they mean it is fair to the adults – who see her as a possession and her presence as their right – not that it is fair to the child”.

“when a lawyer bids for his client to have his baby or toddler to stay overnight each weekend they are both ignoring clear evidence that such overnight separations from the mother are not only usually distressing, but also potentially damaging to the brain development and secure attachment of children under about four”.

She added that the rights of a child must always outweigh those of the parents, and challenged the idea that “equal parenting ought to be equal numbers of days and nights with each parent, without regard with what is best for the individual child. It can be damaging to the child to divide time equally between the parents.”

Her views have angered father’s rights groups and have been called ‘worrying’ and ‘absolute poison’

What do you think? Should children under four not sleep over at their dad’s house if the parents have separated? Is it damaging to kids? In organising shared arrangements are we putting adult’s rights over those of the children?

20 Jul

Parental Alienation Syndrome

Having been involved in many child custody disputes for two decades, including my own custody battle, I noticed that there was a trend in the frequency of a disorder rarely observed before, that of programming or brain washing a child by one parent to denigrate another parent.

In my practice at present, I have successfully had a children return from England by a mother who without the father’s consent had poisoned the children’s minds to such an extent that she took the children to England and blamed the father for the removal – the mother was discredited and the children were returned to South Africa. The disorder is not only confined to brainwashing by a parent but creating support by the children of the alienating parent’s campaign against the targeted parent.

In another child custody case, a client of mine was accused by his wife whom he was divorcing of playing with a three year old’s penis in the bath tub. Psychologists were subpoenaed on both sides and after a three day trial, the court found that the wife had deliberately frustrated my client’s access and that the court was not convinced with her story or the findings of her psychologist.

On the other hand there are many instances where the cause of the alienation is the alienated parent and not the other party. In a leading child custody case dealing with child alienation 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 child 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 child custody. The court went accordingly against the wishes of the child.

Therefore, on account of these tragic cases and frequency of this disorder that I have seen in my practice, I thought I would research the concept of Parental Alienation Syndrome (P.A.S) and give readers of my website a little insight into this disorder. The next blog, posted on Wednesday 22nd July will ask the question “What is Parental Alienation Syndrome?” Read it to find out more.

If you require an attorney to assist you in your child custody case do not hesitate. 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.

29 Jun

Mothers Have A Distinct Advantage For Children’s Primary Residence

Although the new Children’s Act provides for estranged mothers and fathers to have equal parental responsibilities and rights in the bringing up of their minor children, mothers are at a distinct advantage when it comes to primary residence of the minor child/children and where they should reside permanently once there is a divorce or separation.

Although there have been decided cases in which our judges have stated that the word “mothering” can apply equally to a father, in the majority of cases when parents split up, it is the mother with whom the minor child/children lives and not the father.

I have seen many cases where the father is by far the better parent but because on separation the minor child/children has lived with the mother, and has continued to do so for a period of time, the child is left in the mother’s place of residence permanently. This sometimes contradicts conditions whereby the father provides the better environment in which the child can develop.

It is difficult for a father to obtain primary residence of a minor child/children. How is it that when a father refuses to return a child to a mother for good reason, such as for example the mother being a serious manic depressive, that the father is considered in breach of the custody agreement? The father has to fight an action for primary residence from behind because initially, the child/children will be returned to the mother yet it seems fathers are at a distinct disadvantage on separation of retaining primary residence and obviously the longer the minor child /children live with the mother, the more difficult are his chances of ever having the minor child/children live with him.