Paternity Fraud

Paternity Fraud

by Bertus Preller, Family Law Attorney, Abrahams and Gross Inc Cape Town.

Paternity fraud refers to a paternal discrepancy, in which a mother names a man to be the biological father of a child, particularly for self-interest, when she knows or suspects that he is indeed not the biological father.

Fathers’ rights activists’ state that in cases of paternity fraud, there are many potential victims: the non-biological father who pays erroneously maintenance, the child deprived of a relationship with his/her biological father, and the biological father who is deprived of his relationship with his child. Other victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he has to pay and his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.

Foreign Jurisdictions

In Australia, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws. The Australian face of paternity fraud is a Melbourne man named Liam Magill. In 2002, Magill’s ex-wife Meredith was ordered to pay him $70,000 for general damages and the economic loss he suffered as a consequence of her false declaration that he was, as one newspaper report put it, the biological father of “her lover’s children”.

In the UK, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims. Child Support Agency figures show that nearly one in five of the contested paternity claims it handled last year cleared the man originally named as the father. These are the actual figures. Its figures for 2007-2008, obtained under freedom of information rules, show that out of 3,474 DNA paternity tests ordered, 661 – 19 per cent – named the wrong man. It is the highest proportion since the agency started collating figures nationally. Government-approved DNA testing kits, deemed 99.99 per cent accurate, have exposed 4,854 false paternity claims since records began in 1998-99.

In the United States it is estimated that almost 30% of DNA paternity tests, excluded the man as the father of the child in question. Of the 353,387 cases in 2003, 99,174 (28.06%) were reported as exclusions.

South Africa 

Issues regarding paternity have been dealt with in a number of cases in the South African Courts.

Presumption of Paternity

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase “in the absence of evidence to the contrary which raises reasonable doubt” means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate.

This is also in line with the court’s decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating “in the absence of evidence to the contrary” only requires evidence, not proof, to counteract the presumption. The Children’s Act does not define the word “evidence”, thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.

Compelling a person to undergo a paternity test

Most recently in YM v LB 2010 ZASCA 106 the Supreme Court of Appeal had been given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter. It is not suggested that the court was necessarily wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity. In this case the court of first instance ordered the parents and child to undergo paternity testing, the decision of the court was then taken on appeal.

The issue had been unclear for about 30 years and certainty regarding the obligation and power of the court to order such tests against the wishes of one of the parties would have been valuable. It was indeed a missed opportunity to clarify the law once and for all.

The true biological paternity of a child is of the utmost importance in South Africa as it determines the parental responsibilities and rights of parties, including contact, care and the duty to maintain the child until the child becomes self-supporting. The

South African law remains rooted in biology. Unfortunately, it is not unknown for a woman to lie about whom she had intercourse with, resulting in two legal consequences:

(a)   the husband is legally regarded as the father of the child with the accompanying rights and obligations; and

(b)  the biological father is denied his parental rights and responsibilities that he may have had or have obtained automatically vis-à-vis his biological child.

The first principle has its roots in Roman law. I can’t imagine that it was ever the aim of the Roman law principles to force the husband of a wife to support another man’s child without his knowledge. The common law principle of stuprum after all made provision for the annulment of a marriage where a husband discovers that his wife was pregnant with the child of another man at the time of the marriage.

With DNA testing becoming more common and now being done for a variety of reasons, including medical testing for potential illnesses, this has resulted in a spate of paternity fraud cases making headline news worldwide. In these cases the husband and the child discover years later that the paternity was based on a lie and that the husband had supported the child for years as a result of this fraud (see inter alia the facts of Johncom Media Investments v M 2009 4 SA 7 (CC) (South Africa); Magill v Magill [2005] VSCA 51 (17 March 2005) (Australia), supra and the allegations of the horror film director Andrew Douglas against his ex-wife Ameena Meer (USA). This trend is unlikely to end.

In YM v LB, supra, the Supreme Court of Appeal (SCA) found that where the paternity of the child has been shown on a balance of probabilities, as was the case in casu, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt.

The court made the following observations:

(a)          that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof;

(b)          that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child;

(c)          the SCA referred to the observations of the court a quo regarding truth as a primary value in the administration of justice, but by implication disagree with the statement.

The SCA did note that the rights of privacy and bodily integrity may be infringed if it is in the best interests of the child. However, it confirmed the statement made by Judge Didcott in an earlier case that it may not be in an individual’s best interest to know the truth. The court noted that in some cases it may be justified to order tests, but that the discovery of the truth should not be generalized. With these comments, the appeal was upheld.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. After all, it has been acknowledged that from a broader family perspective, family genes are considered to be a valued possession passed down in a family through succeeding generations. Personally I am yet to be convinced by our courts that it would be better not to know the truth or to keep the truth from a child at any age and I ponder whether this is indeed in the interests of a child. In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child. Trauma such as this can be easily be resolved through testing. For the SCA to note that the man is not entitled to scientific proof when the reality is that it can readily be done seems to unnecessarily muddle such an important issue with legalities.

In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power it is submitted that Section 37 of the Children’s Act does not bring certainty. The section states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child’s blood sample taken ‘of the effect’ which such refusal might have on his/her credibility. The problem is that the section does not go far enough and does not resolve the main issue, namely the truth about the paternity of the child.

Although the SCA overturned the initial decision of the High Court, namely to force the parents and the child to undergo DNA testing, it is submitted that certain statements of the original decision remains quite valid. The court of first instance confirmed that judicial notice may be taken of the existence of these tests and that it is unnecessary for medical evidence to be adduced regarding the nature and accuracy of these tests before and that this does not exclude any challenge to the reliability of any particular test in litigation once the test had been performed. There is however no guidance as to the most important question: whether or not it will be in the best interests of the minor child to determine paternity with certainty.

A number of questions still remain, most importantly what weight our courts in future will place on the argument that concealing the truth from a child might have the supposed advantage of not ‘bastardising’ the child or cutting it off from an established source of maintenance? It surely creates an inherent and inescapable injustice in compelling a person to assume obligations not rightfully his.

The father in the YM v LB matter did agree to a marriage, but not to raise another man’s child. What is also important is that a child of the age of 18 has the right to the medical information of his genetic parents in instances of artificial fertilisation and surrogacy which is recognised by section 41(1) of the Children’s Act. One may argue that by refusing the compelling of blood tests for paternity disputes in instances of natural conception would result in denying these children of their right to information of their genetic parents.

It is my respectful view that the court of first instance was correct when it concluded that it will be in the best interests of the child that paternity be scientifically determined and it is unfortunate that the SCA did not provide the legal fraternity with their wisdom.

Another recent decision, this time by the High Court in the Western Cape in the matter of N v J Case Number A653/2009 are of importance. This case concerned an appeal from the Magistrates Court. The Appellant (the Defendant in the court a quo) and the Respondent (the Plaintiff a quo) were married to each other on 25 February 1989.  Their union bore a daughter, who was born in June 1990.  For the sake of convenience I shall refer to the parties as in the court a quo. On 3 February 1995 the parties were divorced and pursuant thereto the Plaintiff was directed to maintain the child by effecting payment of the sum of R350,00 per month and to retain her on his medical aid fund.

It was common cause that during the period February 1995 to June 2006 the Plaintiff paid to the Defendant the sum of R50050,00 in respect of maintenance for  the child.  The said sum included payment of an amount of R1000,00 to a Primary School in January 2000. In June 2006 the child underwent a paternity test which showed conclusively that the Plaintiff was not her natural father. On 30 July 2007, pursuant to an application brought by the Plaintiff an order was granted declaring that the Plaintiff was not the natural father of The child and, inter alia, varying the divorce order in terms of Section 8 of the Divorce Act, 70 of 1979, by the deletion of the Plaintiff’s maintenance obligations towards The child. At the same time the Plaintiff instituted action in the Magistrate’s Court for recovery of the sum of R50050,00 that he paid in maintenance. His claim was upheld and the Defendant appealed against the order of the magistrate.

It was common cause that the parties were married on 25 February 1989 and that the child was born on 12 June 1990.  Assuming a normal pregnancy of nine months, this would mean that the Defendant committed an act of adultery around September/October 1989 during which the child would have been conceived.

The Plaintiff testified that he had always believed that he was the natural father of the girl and that he raised her as such with the Defendant until they were divorced in February 1995. The Plaintiff further testified that he did not oppose his wife’s claims at divorce because he regarded the marriage as irretrievably broken down and because he believed that he was obliged to maintain the child whom he regarded as his daughter. After the divorce the Plaintiff maintained the child for more than ten years.  He testified that he later became resentful about the Defendant’s persistent claims for maintenance increases and eventually decided to ask for a paternity test.  The Plaintiff also testified that he was urged by certain family members to go for such tests.  They evidently had reason to suspect that the Plaintiff was not the father and eventually he succumbed to their entreaties.

The Plaintiff stated that the Defendant never confessed her adultery to him and that his impression was that she never had any idea of who the real father of the child was. Under cross-examination the Plaintiff accepted that he had defaulted on his maintenance obligations over the years but said that he had then paid up in full from time to time. He confirmed that he had paid the maintenance because he was obliged to do so in terms of the divorce order. Unfortunately the Defendant did not testify and so one does not know the circumstances surrounding her pregnancy.  Importantly, there was no evidence to suggest that she knew that her adultery had resulted in the birth of the child and that she intentionally withheld that information from the Plaintiff.  Had that been the case her claim in the divorce action for maintenance for the child would have been fraudulent and would have afforded the Plaintiff a different cause of action.

The Plaintiff’s legal obligation to pay the maintenance in respect of the child arises directly from an order of Court and was accordingly an obligation he could not avoid.  The basis therefore was his assumption that a child born during the subsistence of the marriage was fathered by him.  This is in accordance with the rebuttable common law presumption: pater est quem nuptiae demonstrant.

While it cannot be contended that the Plaintiff laboured under a mistake of law, the divorce order was underpinned by an erroneous factual assumption, (paternity) either by the parties jointly or, at least, by the Plaintiff.  The Judge demonstrated that the SCA has disregarded any notional distinction between mistakes of law and fact:  the focus is essentially on whether the payment was made indebitum i.e. without legal ground. While the parties were still married the Plaintiff maintained the child as a member of the household, believing that she was his child and that he was duty bound to do so.  When the Defendant issued the divorce summons and claimed payment of maintenance for the child, the Plaintiff still believed that the child was his daughter.  As stated, by not contesting the divorce action, he effectively consented to the Defendant’s claims, which included claims in compliance with the provisions of Section 6 of the Divorce Act which preclude the granting of a decree of divorce until the Court is satisfied that adequate provision has been made for the care and maintenance of any child born of the marriage.

Given the findings which the Judge made, it was not necessary to come to a final decision on this aspect of the case, save to state the father’s claim to re-claim the maintenance that he paid over the years did not succeed.  Our courts may in the future be wary of recognising claims in circumstances such as the present which necessitate an enquiry into paternity and which may have the tendency to destroy an otherwise loving and caring parental relationship with a child whose rights to family and parental care are protected under section 28 of the Constitution.

Conclusion

What is disturbing is the fact that it is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child; blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken. A real problem however is to compel someone to undergo such a test in legal terms as evidenced by the cases dealt with above. It remains to be seen how our courts will deal with this issue in future. Fact is that naming the wrong father, could result in criminal prosecution, if proven that the mother concealed the truth deliberately.

About the Author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and deals with Family Law cases on a national basis. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Contact: 021 422 1323

Advertisements

Facebook Leads to Divorce in South Africa?

The number of divorces occurring because of Facebook and other social networking sites has been on the rise since these sites have become increasingly popular, research claims. These sites are being utilized more and more by unhappy individuals to seek out and have an affair and cheat on their partner.

Facebook is now being cited in almost one in five of online divorce petitions, attorneys have claimed.

People will post just about anything on social networking sites. And the information can be used against them.

The social networking site, which connects old friends and allows users to make new ones online, is being blamed for an increasing number of marital breakdowns.

Divorce lawyers claim the explosion in the popularity of websites such as Facebook and Bebo is tempting to people to cheat on their partners. Suspicious spouses have also used the websites to find evidence of flirting and even affairs which have led to divorce.

One law firm, which specialises in divorce, claimed almost one in five petitions they processed cited Facebook.

An American insurance company, in defending its refusal to pay out a claim, is seeking to call in evidence personal online postings, including the contents of any MySpace or Facebook pages the litigants may have, to see if their eating disorders might have “emotional causes”. And the case is far from a lone one. Suddenly, those saucy pictures and intimate confessions on social networking sites can be taken down and used in evidence against you in ways never dreamed of.

Flirty emails and messages found on Facebook pages are increasingly being cited as evidence of unreasonable behaviour. Computer firms have even cashed in by developing software allowing suspicious spouses to electronically spy on someone’s online activities.

One 35-year-old woman even discovered her husband was divorcing her via Facebook. Conference organiser Emma Brady was distraught to read that her marriage was over when he updated his status on the site to read: “Neil Brady has ended his marriage to Emma Brady.”

Last year a 28-year-old woman ended her marriage after discovering her husband had been having a virtual affair with someone in cyberspace he had never met. Amy Taylor 28, split from David Pollard after discovering he was sleeping with an escort in the game Second Life, a virtual world where people reinvent themselves.

Around 14 million Britons are believed to regularly use social networking sites to communicate with old friends or make new ones. The popularity of the Friends Reunited website several years ago was also blamed for a surge in divorces as bored husbands and wives used it to contact old flames and first loves.

The UK’s divorce rate has fallen in recent years, but two in five marriages are still failing according the latest statistics. Mr Keenan believes that the general divorce rate will rocket in 2010 with the recession taking the blame.

In the US, a sex assault victim seeking compensation faces the prospect of her MySpace and Facebook pages being produced in court. In Texas, a driver whose car was involved in a fatal accident found his MySpace postings (“I’m not an alcoholic, I’m a drunkaholic”) part of the prosecution’s case.

According to an article in USA  research by the American Academy of Matrimonial Lawyers conveys that, over the last five years, 81% of divorce lawyers have either utilized or encountered evidence from social networking sites. Facebook is the most cited, appearing in 66% of cases using subpoenaed Internet evidence.

Now, the problem here is not the sites themselves. Marriages break up for the most ancient of reasons, power struggles, lack of kindness, loss of love, hurt, money problems, infidelity and the like. The Internet doesn’t cause marital problems (people do) but it can make matters worse.

Infidelity is without doubt, easier because of the sheer access to so many potential lovers. Gambling takes on new forms (like a poker addiction) found in one’s living room computer. But anonymity is not what one likes to think, because the Internet also makes it easier for the offending spouse to get caught.

The double life you try to lead on the Internet might just come back to haunt you. Lawyers know how to find information you’ve posted on social networking sites that you thought had been kept hidden. Sage advice: Like driving a car, it is a good idea to know about the power of technology before using it and finding yourself in trouble.

Source: TechJournal

Compiled by:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and has written a number of articles in local newspapers on Family Law issues in South Africa. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Grounds for Divorce in South Africa

Dissolution of a civil marriage by divorce in South Africa

Three grounds for divorce were introduced by the Divorce Act:

  1.  irretrievable breakdown of the marriage (section 4);
  2. mental illness of a party to the marriage (section 5);
  3. continuous unconsciousness of a party to the marriage (section 3).

Irretrievable breakdown of the marriage

Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.  There are thus 2 requirements:

(a)   marriage relationship must no longer be normal;

(b)   there must be no prospect of the restoration of a normal marriage relationship between the spouses.

The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis vitae.  When either spouse or both of them behave in such a way that the consortium omnis vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists between the spouses.

Schwartz v Schwartz:  in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, that is, history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.

Swart v Swart:  a marriage has broken down if one spouse no longer wishes to continue with the marriage.  The formation of an intention to sue for divorce is the subjective element in the method of determining marriage breakdown.  However, in order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the parties’ conduct.  Only when the court has determined that there is no reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably and grant a decree of divorce.  The court looks at the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still be saved.

Coetzee v Coetzee:  in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of the marriage from which breakdown can be deduced.  The inherent problem in this conception is that a divorce cannot be obtained in a marriage which was unhappy from the start and remained unhappy throughout.

Guidelines for irretrievable breakdown of marriage (section 4(2))

The guidelines are merely examples of instances where the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.  However, these guidelines are neither exhaustive nor conclusive.

(1)   parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action

Since the legislator requires an unbroken period of at least one year, it is clear that if the period was interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living together under the same roof there is no reason why the plaintiff cannot show that the consortium between them has been terminated.

If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence in support of the divorce action, he or she would have to produce proof that the full period of a year has elapsed.  If the spouses still share the same dwelling, the plaintiff would have to prove the particular point in time at which the consortium came to an end.

(2)   The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship

The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the continuation of the marriage is clearly subjective.  If the plaintiff alleges that he or she cannot continue with the marriage, there is no way in which this allegation can be refuted.  There is support for the contention that it is not necessary to convince the court on a balance of probabilities that adultery was committed.  The plaintiff should however place some evidence of the adultery before the court.  A mere allegation that the defendant committed adultery would not be sufficient to ensure the success of the divorce action.

(3)   A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result of that sentence

If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably.  In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation, regardless of whether or not the separation resulted from imprisonment.

Incurable mental illness or continuous unconsciousness

The criteria

Section 5(1) – mental illness

  1. The defendant has been admitted to an institution as a patient in terms of a reception order under the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an institution;
  2. The defendant has not been unconditionally discharged from the institution or place of detention for a continuous period of at least two years immediately prior to the institution of the divorce action;
  3. There is no reasonable prospect that the defendant will be cured of his or her mental illness.  This fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed by the court.

Section 5(2) – continuous unconsciousness

  1.  The defendant must be in a state of continuous unconsciousness caused by a physical disorder;
  2. The defendant’s unconscious state must have lasted for a period of at least six months immediately prior to the institution of the divorce action;
  3. There must be no reasonable prospect that the defendant will regain consciousness.  This fact must be proved by the evidence of at least two doctors, one of whom must be a neurologist or neurosurgeon appointed by the court.

The requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse.  A decree of divorce can be granted under section 4 if the plaintiff can prove that the marriage has broken down irretrievably.  Only in the most exceptional circumstances will a court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for a divorce which is granted in terms of section 4.

Special rules which apply in terms of the Divorce Act:

(a)   Section 5(3)

The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.

(b)   Section 5(4)

The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any patrimonial benefits to which the defendant may be entitled as a result of the divorce.

(c)   Section 9(2)

Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the ground of the defendant’s incurable mental illness or continuous unconsciousness.

(d)   Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she qualifies for maintenance in terms of section 7(2) of the Act.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Grandparents Access to the grandchildren

Grandparents and Contact –The right to see your grandchildren.

In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.

Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others  to:

  • make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
  • strengthen and develop community structures which can assist in providing care and protection for children;
  • promote the preservation and strengthening of families;

And calls for

  • the prioritisation of the best interest of the child,
  • the right to the child being able to participate in any matter concerning that child,
  • a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

  • the best interests of the child;
  • the relationship between the applicant and the child
  • the degree of commitment that the applicant has shown towards the child
  • the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
  • any other fact that should, in the opinion of the court, be taken into account

Compiled by Bertus Preller, Family and Divorce Law Attorney Abrahams and Gross

Co-Parenting after Divorce, Tips from a Family Law Attorney

Co-parenting tips

Basic Conflict Resolution for Co-Parents

It’s hard enough as a married couple to keep lines of good communication open and flowing. It can seem like an insurmountable problem if you are divorced. Your old ways of nitpicking at each other, anger and frustration will crop up again. After all, if you and your former spouse don’t know each other’s hot buttons, who does?

If you find yourself in conflict with your co-parent, here are some tips:

You are Divorced Now

You are no longer a couple who is trying to stay together and work on your marital relationship. The focus of your relationship must now shift from being about the two of you to being about two separate individuals doing your best to raise your children in the most amicable, cooperative way possible.

Make a Resolution to Start Fresh

A very effective way to move into a new relationship as co-parents rather than spouses is to give each other a chance to start anew. Give each other a clean slate and an opportunity to build a new and different relationship, leaving past arguments behind you.

Demonstrate Respect

You’re a role model, and your children are watching you very, very closely. Showing your children that mom and dad can respect each other and resolve conflict respectfully will give them a good foundation for the conflict that arises in their own lives. Demonstrating respect involves a lot of non-verbal communication. Do your best to remain relaxed and focused, use a calm tone of voice and a concerned facial expression when tensions rise.

Don’t Put it Off

If conflict arises, meet it head on and deal with it immediately. If you sweep it under the rug, it could add to your stress level and grow from a small issue to a large resentment. If it is a major concern, discuss it in private, away from the children. Be hard on the problem, not on the people. Focus on solutions rather than guilt, shame and blame. Make sure you are listening to your former spouse as you brainstorm for solution. It is tempting to hear everything your ex says as “yadda yadda yadda,” so try to listen actively even though it may seem you’ve heard it all before.

Take the High Road

Once your children are grown, you won’t have to parent together any more in terms of caretaking, discipline, school, health issues, etc. and you’ll be out of the day-to-day contact which might be challenging you now. But keep an eye toward the future—it will be fun to be grandparents, and it will be easier if you can get along well enough to dance at your child’s wedding and not make them choose where the grandkids spend Thanksgiving. If you want your children to have a good relationship with both you AND your former spouse, there will be times when you may have to put your own feelings aside temporarily. Keep in mind that you only have the power to change the things you can, and the rest is just something you’ll have to let go.

Homes Sweet Homes

Your children now have two homes. To avoid conflict around custody and visitation schedules, be flexible, prompt and respectful. Also, don’t use transfer time to discuss problems. Put agenda items in writing for a meeting later.

Extracurricular Activities

There will be many school and sporting events that your children will have that they will want you both to attend. Be on your best behavior at these times and as polite and nice to your former spouse as possible. Even making subtle jabs at each other in front of the kids’ friends is humiliating and distracting. And no screwing around with coming late to practice, or skipping it altogether. Let your kids have a childhood.

Ask any adult child of divorce if this is good advice. I know it’s tempting to take the low road during your divorce (I am divorced and remarried myself). But the short run rush you get from that biting comment or throwing a monkey wrench into your co-parent’s plans is short lived, while the fall out may be permanent. Make your divorce easier on yourself by making it easier for your co-parent, not to mention your kids.

Compiled by Bertus Preller – Family and Divorce Law Attorney at Abrahams and Gross Attorneys in Cape Town, South Africa.

Source: Diana Mercer is the co-author of Making Divorce Work: 8 Essential Keys to Resolving Conflict and Rebuilding Your Life (Penguin 2010), and Your Divorce Advisor (Simon & Schuster 2001) and a mediator at Peace Talks Mediation Services, Inc.