WeeklySA_AdminEMOTIONAL:Women can sometimes be unfair
By Bongiwe Sithole and Thuli Zungu
THE upbringing of children should be the responsibility of both parents but in most cases where couples have divorced, men are denied access to their children by their former wives. This is despite the fact that the Children’s Act 38 of 2005 promotes the active participation of biological fathers in their children’s lives through parental responsibilities and rights of both married and unmarried fathers.
Several men interviewed by Weekly SA Mirror told of their frustrations of not being able to be involved in the upbringing of their children after they had separated with their spouses.
Mr. X from East Rand whose name cannot be published to protect the identity of his children said he last saw his kids two years ago.’’ Each time I phone my ex wife to come and visit my kids she tells me that they are not home and that I am not welcome. I have tried to reason with her but in vain. I really don’t know what to do’’.
Founder of Basadi ba Molao, Adv. Anthea Platt SC said issues around children were extremely emotional and parents did not always act rationally and in the best interest of the minor children when it came to such issues’’.
He said married fathers had automatic parental rights and responsibilities jointly with the mother. ‘’On many occasions the unresolved issues between the parents spill over to the contact between the children and parents. If the unwed father has not approached a court to confirm his parental responsibilities and rights, then it will make it very difficult for the father to enforce any contact rights if the mother is unwilling to allow the father contact,’’ Platt said.
Men who are denied their rights to visit or have contact with their children could approach their local magistrate’s courts where they can file an application for an order giving them the rights for parental responsibilities.
‘’Where the mother does not allow the father the contact as per court order, the father may approach the courts in terms of a contempt application in order to enforce his contact rights’’, Platt said.
A 49 year-old man from Phokeng , Rustenburg, said he last saw his children three years ago. Although he was granted visitation rights by the court when they divorced in 2018, his ex wife has refused him access to his two sons aged 6 and 12.
Matters became worse when he lost his job the same year they divorced. ‘’She told me that I was useless. She also poisoned my children who turned against me.’’ A woman from Kwa-Mashu in Kwa-Zulu Natal had a different story to tell. After the birth of their daughter she moved in with her partner. The child’s father later demanded full custody of the child through the courts. She won the case and the man was ordered to pay maintenance and school fees for the child which he never did.
‘’He instead disappeared and only resurfaced now that the child is now an accountant. I told him the affair was over and he cannot have any access to the child.’’ Platt said it was not in the interest of the future relationship between the father and the minor children to be too aggressive in litigation and it was more advisable to rather try mediation. ‘’Mediation is not something that the courts can impose on the parties and both parties must be willing to attend mediation. The Children’s Act also advocates a more conciliatory approach in these matters and will in many occasions attempt to resolve the issues by way of mediation’’.
What the law says…
CHILDREN have a right to both parents irrespective of whether the parents are separated or divorced and regardless of who has custody of the children, according to Lumka Oliphant of the Department of Social Development.
‘’ The absence of one parent has a negative impact on children and adolescents who often face an increased risk of developing behavioural challenges’’.
Oliphant said the department was working on a White Paper that aimed to promote healthy family lives. Many South African children, she added, lived without the support of their parents and this compromised their right to protection and care.
‘’Some of these children live in child or youth –headed households, grandparent-headed households and some, if not most, are raised by one parent, mostly their mothers.
‘’The upbringing of children should be the full responsibility of both parents unless a court determines otherwise,’’ said Oliphant.
In its strategic priority of promoting healthy family lives, the White Paper would ensure that fathers are treated equally by the courts in custody decisions. It would also strengthen the provisions of the Children’s Act and promote responsible parenting which would include amongst other aspects, responsible co-parenting by both mothers and fathers. The White Paper also enhanced parents’ ability and capability to protect children from exposure to, and participation in activities that may be detrimental to their physical, emotional, psychological, intellectual and sexual wellbeing.
As part of encouraging fathers’ involvement in their children’s upbringing, the White Paper proposes several measures which would, amongst others, ensure more effective enforcement of maintenance payments by absent fathers.
Oliphant also stressed that the Children’s Act promoted the active participation of biological fathers in the children’s lives through parental responsibilities and rights, co-exercise of parental responsibilities and rights, parental responsibilities and rights of unmarried fathers, parental responsibilities and rights agreements , parenting plans, care and contact.
