Parenting: Does a Mother really know best?

2012-06-06 22:15

Nothing stirs up feelings more than the controversy generated when parents are at war over the parental rights of a child in cases of divorce and separation. Fear takes over reason, incomplete facts become evidence, and court calendars become cluttered with repeat visits to a judge to try to bring sanity to what is unlikely to ever be sane.

I was recently moved when I read David Goldman’s story about his five-year struggle to reunite with his son Sean after a highly publicized international child-abduction case. David married Bruna and they had a son, Sean Goldman. In 2004 when Sean was 5 years old, David took them to the Airport for a planned 2-week vacation to her parent’s home in Brazil. Bruna arrived in Brazil and called David to tell him their marriage was over, she and Sean were not returning to the US, and if he ever wanted contact with his son again, he would have to sign custody over to her. David fought in the Brazilian courts for 4+ years. The Brazilian courts ruled that Sean belonged with his mother. Bruna obtained a divorce in Brazil and married an attorney from a very prominent family in Brazil. Three years later Bruna tragically passed away during childbirth. David was not informed of her death by her parents or by her new Brazilian husband. He found out only through friends. Since he was the biological father, and the only other person with a reasonable claim to custody, he assumed that he would be reunited with Sean and return him to his home in the U.S. The Brazilian husband and his parents denied any contact between Sean and him. David found out that Bruna’s Brazilian husband did not file for custody but instead he replaced David (his biological father) on a birth certificate issued for Sean in Brazil. After four years of trying desperately to be with his son they were finally reunited by a court order in 2009.

A few years ago feminists told fathers that they should be more actively involved in raising their children. Today women are pursuing careers as never before. Slowly a shift began and fathers became more involved in the day-to-day care of their children than in previous generations.  As a result the rigidity about parental roles is slowly fading away however, the tender years doctrine is still in place. This doctrine presumes that by virtue of the fact that a woman is the mother of a child, she must be the superior or de facto parent.

The introduction of the concept of co-parental rights in terms of the new Children’s Act was without a doubt a better way of handling the evolving problem of how to share parental rights over a child. With the introduction of the Children’s Act it was believed that it would lead to fewer disputes over the care and contact of children because the approach was more equal. Although the Children’s Act helped to level the playing field for fathers somewhat, it still remains far from reality. As with any trend, there seems to be a backlash that child contact (custody) between parents is becoming a gender-specific issue and as a result their seem to be more disputes in our courts these days as more and more fathers want to continue to be involved in the care of their children.

It is evident that on interpretation of the Children’s Act, the tender years presumption (mother knows best) was replaced with the best-interests-of-the-child presumption (the best parent is both parents).

In other parts of the world the courts began to increasingly ignore gender in determining child care and removed the automatic allocation of full parental rights of the mother. Instead, the courts look first at how the custody could be shared, and if that wasn't possible, judicial officers attempts to determine which parent was more interested and better able to attend to the best interest of the child.  Unfortunately in South Africa fathers are still in most cases perceived to be at a disadvantage because of a bias toward the mother. As a result groups such as Fathers-4-Justice and Section35 have launched campaigns for father’s rights.

When a child is alienated by a parent, the other parent faces insurmountable obstacles. The emotional, legal, and financial difficulties precipitated by the alienation can be among the hardest challenges a parent will ever encounter. To alienate a child from the other parent is probably one of the cruelest and selfish acts any parent can do to their own child. Alienation makes a possession rather than a person of the child.

On a question put to David Goldman on what he had learn during his quest to be reunited with his son he stated “First, whether you are a father or mother, spending as much quality time as possible with your children is crucial. Connecting with them is the key. Listen to what they say and value it. Appreciate every moment you have together. Fathers are very important in the lives of their children. As a single father, I need to be strong and stoic, but also very tender, caring and compassionate. A lot of dads are the disciplinarian and/or the humorist, but dads need to be more. It’s okay to show a softer side. Our children learn from us and we need to lead by example”.

In Australia the assumption that young children have only one "psychological" parent is now being challenged. According to Sydney law professor Tom Altobelli at the University of Western the exclusive attachment to the primary parent is based on an outdated view of parent-child relationships. Researchers in Australia have concluded that infants and toddlers should have multiple contacts each week with both parents to minimize separation anxiety and maintain continuity in the child's attachments.

The great irony is that family law experts often quibble over how much contact fathers should be allowed to have with their children, in cases where children will not be cared for exclusively by their mothers. These days, many such infants and toddlers will spend long periods cared for by unfamiliar child-care workers at creche and will often be handed out to relatives and friends.

Unfortunately shifting attitudes in our Family Courts is a slow process and it remains to be seen when the playing fields will be leveled completely.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

021 422 1323

Twitter: @bertuspreller



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