The stark social reality is that in South Africa one out of every two marriages ends in divorce, and the impact of these separations, particularly in hostile situations, is often devastating for children. The behaviour of warring parents is often shockingly ignorant or short-sighted, and as in the case of Linda, a 40-something businesswomen whose parents went through a vicious divorce when she was seven, it can mess up your life for decades to come. “My dad had an affair. My mother couldn’t take the strain of the divorce. She had a complete mental and nervous breakdown and was hospitalised. My siblings and I ended up living with my dad and his new wife, who was a really horrific individual. They sat us down and my dad told us we were to call his new wife ‘mommy’ and to never speak of my real mother again. I didn’t see or hear from my own mother for the next four years. I still cry about it sometimes.”

Small children, particularly infants and toddlers, are completely dependent on parents for physical care. They might not understand anything about separation and divorce, but they do notice changes in a parents’ behaviour towards them. Not surprisingly, according to Famsa, these children feel the most afraid of complete abandonment when their parents first separate. They may cry for no apparent reason, develop sleeping disorders, regress to a more infantile state or become irritable or aggressive. Even small infants may display changes in their eating or sleeping patterns, develop bowel problems such as diarrhoea or constipation, or seem more fretful, fearful, or anxious. Parents of infants should try to keep a normal routine, according to psychologist Sheryl Cohen. It’s important to try and remain calm in front of their baby, and to ask family or friends for help, when necessary. Parents should also remember that even infants need contact with both of their parents.

• Explain to them in simple terms that you no longer want to be married to each other but that you are not divorcing them.
• Explain what divorce means in practical terms. This includes things like when and where they’ll they see the non-custodial parent, when they’ll visit their grandparents and how the changes will impact on their birthdays and schooling.
• Never use your children as messengers, or interrogate them about things your ex spouse might be doing.
• Never badmouth your ex in front of your children. The more you fight, the harder it will be for your children to adjust to the divorce.
• Don’t compete with your ex for their love, or put your kids in a situation where they feel they have to choose between you – your children will always love both of you.
• Encourage your children to visit the non-custodial parent, even if emotions are running high.
• Always keep your promises to the kids. They need to feel secure and wanted.
• Provide your children with unconditional love, and create new family traditions.
• If you can’t make things better for your children, don’t make them worse.
• Seek advice and consultation from a qualified health care professional if your children have pre-existing mental, emotional or psychological problems.
• Seek advice and consultation from a qualified health care professional if you feel overwhelmed and unable to respond effectively to the emotional needs of your children.  This can be a tremendous support and can help you deal effectively with your children and spouse.
• Don’t lean on your children for emotional support. Look after yourself and spare your kids the burden of responsibility.

Concerned lawyers and civil rights activists alike agree that although the new Children’s Act seems to provide more clarity on the rights of fathers, for the most part it’s not being adequately enforced.

For one thing, only sections of the Act have been promulgated. The bulk of it is still on hold, much to the frustration of organisations like Fathers-4-Justice (F4J), a civil rights organisation campaigning for children’s rights to see both parents and grandparents after a divorce.

The organisation’s Gauteng public relations spokesman Gary da Silva describes the Act as “toothless,” a term that attorney Roy Bregman agrees with.

“It is definitely toothless,” says Bregman, who heads a Johannesburg firm of attorneys often faced with protracted, complex family law cases.

Asked why the bulk of the Act is still on hold, Bregman explains that much of the delay revolves around the need to put in place a detailed parenting plan in divorce situations. Both parents theoretically have equal rights, but in order to prevent complex arguments and further legal battles, the parents would need to agree on practical arrangements such as schooling, holidays and religious upbringing. “That’s what’s holding things up, mostly,” Bregman says. Each case is individual, and has to be treated as such.

Furthermore, traditionally, women are seen as the most appropriate caregivers for children, and even though on paper parents have equal rights, the courts still favour women. Divorcing parents commonly encounter a gender bias towards women, and come up against conservative male judges from traditional cultures who fail to understand why a man would want to take responsibility for some of the physical care of small children.

According to da Silva, F4J’s main goal is to raise awareness of the plight of many parents – mainly fathers – who have limited or no access to their children. The organisation also aims to advise parents who are having problems with maintenance and those going through traumatic divorces. “I’d like to emphasise that we are not anti women or pro men. We’re pro child,” says da Silva, explaining: “this is not only about fathers who are being treated unfairly. It is mainly about the child’s rights.”

In Bregman’s experience, by the time a marriage has broken down and each parent has appointed their “hired gun” divorce lawyer, gloves come off and people typically behave badly. “Men in divorce situations tend to use money as a weapon, whereas women tend to use the kids.” Bregman has seen the trauma caused to children in these situations many, many times. “I wish divorcing parents really understood the extent of the damage they do to their children when they behave badly. Those children are traumatised for life,” he says.

The ‘system’ currently set in place by government to assist with mediation – the Office of the Family Advocate, is described by Bregman and da Silva as woefully inadequate.  Officials are supposed to help parents reach an agreement on disputed issues, namely custody, access and guardianship. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship. In reality, it takes six months to get an appointment, and you are allocated 45 minutes to present what is frequently a complex case as articulately as possible. Bregman says the system’s not working. “They’re overworked, underpaid and they push people through there as quickly as possible. It’s a sausage factory.”

Da Silva has no faith in the legal system at all: “the parent with the most money wins when it comes to legal battles… there are money-hungry lawyers who take even the most ridiculous dispute to court just as long as they can continue writing fees. In many cases, our members bankrupt themselves doing battle for years to win some ground. In many cases, they simply have to give up and go away, because they have no money left.”

“Unfortunately, in many instances, this is true,” admits Bregman. He suggests that the legal fraternity would benefit from a strictly enforceable code of conduct to prevent unscrupulous legal practitioners from cashing in on protracted legal battles.

Da Silva agrees that there are fathers out there who do not meet their obligations after a divorce, and that F4J rejects these fathers. They don’t want members with a criminal history. “But we are desperate to remain good fathers and see our children grow up and be happy.”

Bregman understands their frustrations, but says that realistically, the Act is unlikely to change significantly at any time soon. “We can see where the problems lie, and we recognise the shortcomings that are causing immense frustrations with F4J. While we sympathise with the plight of F4J, we also know that it takes years to challenge laws and get them changed. The Children’s Act as it currently stands is in line with similar laws in other Western countries. Change doesn’t happen overnight.”

The best thing that parents can do when they’re divorcing, says Bregman, is to behave like adults and – abuse cases being the obvious exception – to consider the importance of maintaining a loving relationship with both parents. Women in particular, he emphasises, need to be better educated about the new rights of fathers, as for the most part they seem to be unaware that even unmarried biological fathers now have strong parental rights.

The new Children’s Act takes the concept of ‘the best interests of the child’ as its starting point. Whereas in the past, it was accepted practice for the mother of a child to automatically be awarded custody, this is no longer the case. In the past, unmarried fathers in particular, had very limited rights, but technically both parents now have equal rights.

Although the biological mother of a child, irrespective of whether she is married or not, has full responsibility over a child, and the same principle applies to the married father, the unmarried biological father may apply to the courts to play a role in his child’s life. (This is referred to in legal terms as Parental Responsibilities and Rights.)

The biological father is still responsible for the payment of maintenance for the child, whether or not he applies for Parental Responsibilities and Rights. It’s also important to recognise that where the law used to refer to terms and phrases like such as “custody” and “access”, the terms which are now used are “care” and “contact.”

1.         The responsibility and right to care for the child

2.         To maintain contact with the child

3.         To act as guardian of the child

4.         To contribute to the maintenance of the child.

• Under the old dispensation, where parties were divorced, one parent would usually be awarded custody of a minor child and the other parent would be entitled to exercise access to the minor child. The custodian parent would be vested with making all of the day to day decisions of the minor child, including which school the child would attend, what religion the child would practice, where the child would reside and so on. This is no longer the case and the parents have joint Parental Responsibilities and Rights. All major decisions relating to the minor child, including those mentioned above, need to be taken by both parents. This is generally understood to be a far healthier situation for the child.
• Where a father of a child born out of wedlock, or even the father of a child born in wedlock, is unable to pay maintenance for a minor child, the baby’s paternal grandparents may be taken to court to pay maintenance for the minor child.
• Where the parents of children born in wedlock intend to travel outside the borders of South Africa, without the company of both parents, it is necessary to have the written consent of the spouse who will remain behind. This becomes especially important in the case of divorced spouses, where the spouse who remains behind in South Africa may be concerned that the spouse who is travelling with the children will attempt to abduct them to another country.