Fair Warning to Parents – Parental Alienation
When parties are going through a divorce where children are involved, it can be difficult for the parent who does not have primary care of their minor children to exercise their parental rights and responsibilities, especially if the circumstances are acrimonious. In such circumstances the court will always act in the best interest of the child in accordance with section 7 and 9 of the Children’s Act 38 of 2005.
In a recent case, D v D (25896/21)  ZAGPPHC 818 (31 October 2022), the court was presented with an application which related a father (the applicant) wanting to exercise his parental rights and responsibilities by having more access to his minor children.
The parties had separated and the applicant (father) moved out of the marital home but exercised his right to contact with the minor children by visiting them at the home during the week. The father alleged that the respondent (the mother) prevented the eldest child from sleeping over at his place on Saturdays and only allowed the youngest to. The mother alleged that this was due to the father’s aggressive behaviour after consuming of alcohol, she wanted an investigation into this in order for the contact arrangement to be changed. The father alleged that the mother made the unilateral decision to home-school the eldest child and that his academic performance was deteriorating. The father also alleged that he was unable to have contact with the children during the holidays and that the children are not encouraged to spend time with his family.
The court conveyed its concern with the alleged use of alcohol by the father but found that there was no evidence of abuse as alleged by the mother. The court found the fact that the mother was comfortable with allowing the youngest but not the eldest child to have sleep overs at the father’s house unreasonable. The court granted the father contact every alternative weekend and on holidays and requested the family advocate to investigate what is in the best interest of the minor children regarding care and contact as well as the issue regarding home-schooling and make recommendations.
Parents who do not have sole guardianship should not make unilateral decisions without consulting the other parent concerning the minor children’s well-being, children should be encouraged by parents they live with to have contact with their non-resident parents and family, because it is also the child’s right. This case illustrates that the court will always apply the best interest of the child standard, which is paramount in all matters relating to children according to section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 and will act to encourage a stable family environment even where parents separate or divorce.
There are of course exceptions to the above, as is in life.
Nonkululeko Chabalala is a Candidate Attorney at CK Attorneys.
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