Access issues

In the first joyful flush of parenthood, few new mothers and fathers imagine that they’ll ever be anything other than a happy family. But divorce is a stark modern reality: Famsa (the Family and Marriage Society of South Africa) quotes a figure of one in two South African marriages ending this way.

As traumatic as divorce can be for the adults involved, it’s the children who can end up really suffering. The adults do, after all, usually have some warning of the marriage’s ending and so can plan and prepare; for the children it usually comes as a shock. Children experience a wide range of emotions as a result of divorce, from sadness, anxiety and anger to fear and feelings of abandonment.

Aiming for continuity

One of the most important ways in which children can be made to feel more secure following the upheaval of a divorce is to ensure as much continuity in their lives as possible. Other than in exceptional circumstances (for instance, where there was abuse of the children), the obvious way to do this is to allow the kids as much contact with the ‘live-out’ parent as possible.

In most divorce cases, the live-out parent is the father; the mother usually becomes the ‘custodial’ parent, meaning that she’s the person with whom the children live, and who supervises and manages their day-to-day lives. This varies from case to case.

This does not mean, however, that non-custodial parents are deprived of parental rights. To the contrary: they have very definite legal rights and responsibilities.

Among these rights is ‘reasonable access’ – which is, incidentally, a right of the children, not of either parent. Reasonable access depends largely on the age of the children and their relationship with their mother and father, but where schoolgoing kids are concerned it’s usually every alternate weekend and every alternate school holiday.

Access denied

It’s a criminal offence to deny a parent reasonable access but divorce creates all manner of bad feelings, and it’s not unknown for a parent to deny access as a sort of punishment for real or perceived wrongs. The non-custodial parent does have recourse, although it’s unfortunately not a simple process.

He or she needs to apply to the High Court for a court order allowing access.
  • He or she also needs to inform the Family Advocate of this application – the Family Advocate is employed by the Department of Justice to act as the legal representative of the children and his/her services are free.
  • The non-custodial parent will, however, need an attorney to help him or her prepare the application, which can be costly.
  • The same steps apply for a variation (change), a rescission (cancellation) or a suspension (postponement) of any existing court order.
Simply applying for it doesn’t mean that the parent will automatically gain access; the Court will grant an order only if it feels that this is in the best interests of the children. In order to make its decision, the Court takes into account various factors, including:
  • the age, state of health, and social and financial position of both parents
  • the non-custodial parent’s temperament and his past behaviour towards the children, and
  • the age, gender, health, character, education and religious needs of the children.
  • the children’s personal preferences are also given weight.
A very important point for non-custodial parents to remember is that the payment of maintenance is in no way connected to access: the parent isn’t ‘buying’ access to his or her children by paying maintenance.

Maintenance is a legal responsibility of both parents and isn’t dependent on whether there is reasonable access to the children or not – regardless of how often a parent sees the kids, he or she is legally obliged to contribute financially to their support.

Do you have experience of access negotiations? What would you recommend?

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