The Times. Friday January 8, 2016
Megan Harrington-Johnson, a partner at Schindlers Attorneys, looks at the question of the primary residence of children after divorce, noting a move away from the old assumptions of the mother as the primary caregiver.
In this article, I do not want to delve too deeply into the concept of both parents in a marital relationship having full parental rights and responsibilities in respect of their children. Suffice it to say that when a married couple divorces, both parents will, by operation of law, have full responsibilities and rights in respect of the children born of the marriage. But the question still remains as to with which parent the child/children will primarily reside.
To this end, when dealing with a dispute over with whom minor children are to reside subsequent to the breakdown of a relationship, I am almost always faced with the client’s preconceived idea that the courts will always order that minor children are to stay with their mother.
I am constantly explaining to these clients that while there may have been a tendency for our courts to act this way in the past, the old preconceived notions about mothers always being the primary caregivers of their chil-dren no longer apply in today’s modern society.
I am seeing more and more cases where the nuclear family of old has changed to such a degree that there is no longer a “home-maker ” or “stay-at-home parent”.
The reality is that parents actually cannot afford to have one parent stay at home to care for the children as they may have been able to do in the past. As a result, more and more households now have double incomes and, more often than not, both partners seem to be earning on an equal level.
Insofar as child-rearing is concerned, this essentially means that the “traditional” roles have changed.
Recent Case Law
A very clear example of this change in roles, and also the attitudes of our courts, is a case that was decided by Acting Judge De Klerk in the Pretoria High Court late last year: Baloyi v Baloyi.
The Baloyi case was a divorce matter where the main issue that was to be decided was with which parent the two minor children who were born of the marriage between the parties were to mainly reside. One was a boy, aged six, and the other a four-year-old girl.
In this case, both the mother and the father contended that it would be in the best interests of the children to reside with them, and advanced a variety of reasons in support of their contentious arguments.
At the time of going to court, the father had interim primary res-idency of the children, and was living with them at the former matrimonial home. As a result of this interim order, the father had to arrange to work fewer hours and had hired a professional nanny to care for the children when he was unable to.
During the trial, no serious allegations pertaining to each of the parties’ capacity to care for the children were made, and it appeared that both the mother and the father were good, caring and loving parents who were physically and mentally stable and able to care for the children. As a result, there were no clear “red flags” against either parent’s name.
During the course of the trial, it came to light that the mother’s main concern was that the nanny was the person who was the main caregiver for the children, and not the father himself. On the other hand, the father’s main concern was that the mother did not always exercise her contact with the children. The mother, however, countered that the father was not always accommodating when it came time for her to exercise her contact with the children.
Ultimately, the court awarded primary residence to the father, for the reasons detailed below.
The thoughts and wishes of the children
Although, in these types of proceedings, children are generally consulted on their own views, in making its decision the court took note of the fact that children will often give different versions to different parents in certain situations.
The fact of the matter, in this case, like in so many others, is that the children did not want to be separated from either parent and they hoped, whether consciously or subconsciously, that their parents would reconcile in the future. The court therefore ultimately decided that the children in this matter were too young to have their views be decisive of the outcome.
The children’s best interests
In its judgment, the court emphasised that when the question of what would be in a child’s best interests arises, this must be determined according to the facts and particular circumstances of each and every case, and not on generalisations such as “the tender age of the child/ren doctrine” or the principle of “preserving the status quo”.
Further, when determining what is in a child’s best interests, undue weight must not be placed on any one factor, but all relevant factors must be considered against the backdrop of the specific circumstances of each case.
In making its decision, the court made reference to certain important aspects of various cases that had come before the Baloyi case, such as the case of P v P, where it was stated that: “Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children…”
The Constitutional Court also stated, in AD & DD v DW, that: “To apply a predetermined formula for the sake of certainty, irrespective of the circumstances, would in fact be contrary to the best interest of the child concerned.”
In this case, the court also stated that far-reaching statements such as “young children should reside with their mothers and/or contact with their fathers should be restricted to short periods of time” are unsustainable.
Interestingly, it also stated that ordinary human experience tells one that the continued involvement, companionship, love and support of both a father and a mother after separation and divorce enhances a child’s sense of security.
In its judgment, the court went on to state that one should not take a short-term view of the possible unsettling effects occasioned by any change in children’s lives, but also consider the possible long-term benefits to be obtained in each specific case.
The court also referred to the much older case of M v M, where it was held that: “Where the parents have separated and one has the care of the child, access by the other often results in some upset in the child. These upsets are usually minor and superficial. They are heavily outweighed by the long-term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.”
As you can see from the cases that the judge in the Baloyi case referred to, it is clear that there is nothing as important, in the eyes of the court, than a child having a meaningful relationship with both of its parents, in circumstances where this is at all possible.
Changing societal roles
The court then also went on to emphasise that, despite “traditional” roles that used to be attributed to men and women in a parenting scenario, there is no doubt that over the last number of years the roles and responsibilities of parents within the family structure, as well as social norms and patterns in this regard, have changed.
Fathers have also taken up parenting roles, and mothers have followed their own careers. The norm these days is no longer that of a “stay-at-home mom”, but rather that of working parents who manage with the assistance of aftercare, domestic workers and family.
In this regard, the court referred to the case of Van Pletzen v Van Pletzen, where it was stated that mothering is not only a component of a woman’s being, but is also part of a man’s being, and that a father, depending on the circumstances, possesses the capacity and capability to exercise custody over a child just as well as a mother.
The court went on to refer to Van der Linde v Van der Linde, where it was held that the concept of mothering is indicative of a function rather than a persona. It includes the sensitive attachment which flows from the attention devoted day-to-day to the child’s need of love, physical care, nutrition, comfort, peace, security, encouragement and support.
Finally, the court referred to the decision in V v V, where it was stated that: “The old position where the custody of young children was invariably granted to mothers has changed. As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.”
The Baloyi case is a fantastic example of the thought process that the court, as the upper guardian of all minor children, must apply in deciding what is in a minor child’s best interests. It is also hugely illustrative of the changing roles in our society and the doing away with of preconceived notions.
It essentially sets out that, all things being equal, in a situation where both parents have full-time jobs, it is not automatically the default decision that the mother should obtain primary residence of the children, simply because of the fact that she is female. This type of a decision is rather to be made as the result of a well-considered evaluation based on a full investigation by the court of all factors before it.
This case goes a long way towards enhancing children’s rights by ensuring that the courts do not simply rush into predetermined decisions based on outdated assumptions. It also reinforces the roles that both parents play in a child’s life and the need for same.
This is a big step towards the recognition of parental rights for fathers across the country as well.