LIVING ARRANGMENTS OF THE MINOR CHILDREN IN A DIVORCE

 Parents going through a divorce are psychologically fragile and with the rollercoaster of emotions they experience, there is often one parent who will project their anger, anxiety or fears they have of the other parent onto the child or children by being overly negative and essentially “turning the child against” the other parent. This leads to the occurrence of Parental Alienation where the child or children reject the one parent as a result of the detrimental programming or brainwashing by the other parent. When this happens the child becomes ingrained in the divorce wars and feels forced to pick a side. Parental Alienation causes the relationship between the child and alienated parent to deteriorate at a rapid rate and the child is left emotionally scarred and robbed of a normal and stable developmental childhood. The risk of a child becoming an alienator in future relationships becomes drastically higher.

Clinical psychologist, Dr Marile Viljoen, provided that statistics released by Statistics South Africa revealed that 55% of divorce cases involved children below the age of 18 years. She thus added that it was important to understand the symptoms of parental alienation syndrome, as ‘the voice of the child’ is crucial to drawing up a parenting plan and where the dynamics of parental alienation is not properly understood, it is very easy to buy in or to even become part of that “alienation process”’. She explains the various symptoms of parental alienation as follows:

  •  A campaign of denigration: The child is consumed with hatred of the targeted parent and denies any positive past experiences. The child rejects all contact and communication. Dr Viljoen said ‘the parent who was once loved and valued seemingly becomes hated or feared overnight.’
  • Weak, frivolous and absurd rationalisations: When a child is questioned about the reason for their intense hostility, the explanation offered is not of the magnitude that would lead to a child rejecting a parent.
  • Lack of ambivalence about the alienating parent: Dr Viljoen stated that an alienated child exhibits a lack of ambivalence about the alienating parent, the one parent is perceived as perfect, while the other parent is perceived as flawed.
  • The “independent thinker” phenomenon: Dr Viljoen said: ‘Even though alienated children appear to be unduly influenced … they will adamantly insist that the decision to reject the target parent is theirs alone.’
  • Absence of guilt about the treatment of the targeted person: Alienated children will appear to be rude, ungrateful, spiteful and cold toward the alienated parent. ‘A child will try to get whatever they can from that parent, declaring it is owed to them,’ Dr Viljoen said.
  • Reflexive support for the alienation parent in parental conflict: Dr Viljoen pointed out that intact families, as well as recently separated or long-divorced couples will on occasion have a disagreement and conflict within the household. ‘Children with parental alienation syndrome will have no interest in hearing the targeted parent’s point of view. Nothing the parent could do or say would make any difference to the child,’ Dr Viljoen said.
  • The presences of borrowed scenarios: alienated children often make accusations toward the targeted parent. According to Dr Viljoen, the child does not appear to understand the situation and speaks in a scripted fashion and makes accusations that cannot be supported in detail.
  • Rejection of extended family: the hatred of the targeted parent spreads to their extended family. Dr Viljoen said former family members are completely avoided and rejected.’

 Examples of parental alienation include:

  • ‘to carry out campaigns for disqualifying a parent’s behaviour upon exercising his/her parenthood;
  • to obstruct the exercise of parental authority;
  • to obstruct the contact between a child or adolescent with one of their parents;
  • to obstruct the legal right to exercise family life;
  • to deliberately withhold from a parent relevant personal information on the child or adolescent, including school-related, medical, and address changes;
  • to file false charges against a parent, their family members, or against grandparents;
  • to obstruct or prevent their presence in the child or adolescent’s life;
  • to change residence to a distant place, without justification, in order to make it difficult for the child or adolescent to live with the other parent, their family member, or grandparents.’

 When signing a settlement agreement in a divorce matter, the parties must realise that it is an indication to the courts that he/she understands the terms thereof and undertakes to abide by it. If there is any uncertainty, the parties must take it up with their lawyers to gain clarity.

Judge Peter Mabuse, sitting the High Court in Pretoria stated that our ‘courts will not allow divorced parents to use their children as pawns’ when committing a Pretoria mother to 30 days’ imprisonment for contempt of court after she denied her ex-husband access to their 3-year-old son. Thus, should a parent fail to adhere to the settle agreement entered into upon divorce which has been made an order of court, he/she could go to jail. Judge Mabuse said once an agreement between parties is confirmed by the court, it becomes a binding court order.

In the case of Germani v Herf, the father was refused access to the child by the mother over a prolonged period, despite a court order entitling the father to certain rights of access to the child. The question before the court was whether the father proved that the mother’s refusal to comply with the court order was wilful/intentional, also taking into account the 12-year-old child’s steadfast refusal to have anything to do with the father. Having held that the child’s resistance was undoubtedly encouraged by the mother’s negative attitude as constantly adopted towards the father’s right to access, the court raised the question whether in such circumstances the court of first instance could have considered awarding custody of the child to the father. The court made the following remarks: “A note of warning should, I think, be added here. If appellant’s access continues to be frustrated or prevented by first respondent or the child, the court a quo may well have to consider seriously in the light of all the circumstances, apart from any questioning of enforcing the committal order against first respondent, whether the only solution is to award the custody of the child to the appellant, at any rate for such time as it deems fit. That would afford an effective opportunity for father and son to become reconciled”.

 The family law proceedings in South African courts revolves around the principle of the child’s best interests being paramount. Thus, where there are allegations of abuse in general, direct contact with the child is instantly interrupted while the courts delve into the facts of the case; safeguarding and clinical assessments of the child. According to Dr Craig Childress, an American psychologist, the only way to deal with an alienating parent is to obtain the child’s protective separation from the borderline alienating parent. Until one obtains this protective separation, any effort to restore the child’s genuine affectionate bonding will simply result in the child’s further confusion in picking a side in the “spousal” conflict caused by the alienating parent placing increasing psychological pressure on the child to reject the other parent. The unimaginable mental struggle a child must endure as a result of a parent’s insecurities is unfair and damaging.

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