Does my ex have to take our child with him on weekends?

 

Another public holiday is behind us and attorneys' offices most likely have received at least one call from a divorce client who wants to make last minute arrangements about their child's visit to the other parent or who wants to stop that visit from taking place at all.

Divorces tend to bring out the best and worst in parents. The father who has always been to busy with his work to pay attention to his children suddenly becomes an interested parent who is willing to even litigate in the High Court to spend time with his child! The mother who used to wish that she had not thrown away her best years for her husband and children...? Her children have now become her "everything"...

Healthy children suddenly develop medical emergencies out of the blue that require medication to be bought every month and the boy who was not interested in any extra-mural activities has suddenly begun taking piano lessons...

South Africa's law does not allow much room for abuse in disputes regarding the care of minor children. What little room it does leave for abuse, however, is often used well by parents and their attorneys alike.

One of the areas where abuses take place the most is with visitation...

What you would most likely want to know is what the Law says on the subject. Well... If I had to show you what the Law says it would look something like this:

None of this says anything about weekends, does it...?

Exactly... 

The Children's Act 38 of 2005 does not tell us when and how often a child should see his / her parents, but it does tell us what we should take into account when looking for the answer to that question.

When two responsible parents, who just refuse to put their differences aside for the sake of their children during a pending divorce action, are unable to agree to a visitation schedule- the Family Advocate may be called by the parties to intervene and facilitate mediation in order to recommend an answer to the question on how often and when one's child is to have contact with the parent that is not living with him or her and in what manner. 

The Court can on application by either parent provide more than just a recommendation, but shall rely on guidance provided by the Family Advocate. 

If a court order had to be obtained- and is in place- there would be no more questions on the matter, but deviations from the terms set by the court order often occur. Any deviations with effects that last less than a month or of which the effects do not cause any irreparable harm cannot be effectively dealt with by any court. That is- a child being returned 30 minutes after the time set in the court order, a parent being a day late in collecting the child from the other parent or face-time being delayed with an hour. These things are definitely not worth the Court's time.

I have, however, found that in that space where some parents enjoy deliberately frustrating the other parent, there is something that can be done...

Just as it would take you a painstaking number of months to obtain that Family Advocate's report so that you can have your court order approved- so it will take that other parent a similar amount of time to get a court order against you if you decide one day that you have had it with the verbal abuse that you have to endure whenever the child is picked up from your home or dropped off. The same goes for when you no longer want to anxiously sit and wait for your child to be back by 18h00 as stipulated in the parenting plan, but your ex insists on bringing the child back at 20h00 and laugh it off when you are upset.

Should you decide to refuse to have the other parent take the child away with him under circumstances like what I have described above- that other parent shall only be assisted by the Children's Court or High Court after following its procedures and taking the time necessary for the Family Advocate to look into the matter as you would have if you had to approach the Court.

Should the aggrieved parent approach the Court for assistance you will be given the opportunity to tell your side of the story and if the Court did not give you the chance to do so, you come to me...

What we have to remember is that the egos of the parents involved are not the main consideration of our Courts when they have to make rulings or orders with regard to the care of minor children. It is the best interests of those children. 

After all- you may have stopped being husband and wife, but you are both still parents...