Article by: Durban Divorce Attorney: Fawzia Kahn
I was interviewed on the radio station Lotus FM on 29 May 2017 to discuss the rights of children and grandparents in divorce. This is a brief summary of the radio interview.
Children have the right to be fully involved and participate in all matters which concern them. This means that when parents are about to divorce they are obliged to take into account the wishes of the child. The Children’s Act says that due consideration must be given to the voice of the child. In making this consideration possible a child’s level of maturity, age and stage of development are important factors to consider. So if the child has the necessary intellectual and emotional maturity and is as being able to freely express how he or she feels about the proposed changes following the divorce, the court will certainly give weight to the child’s preference.
Of course there are instances when the wishes of the child will not or cannot be considered. This would be for example when the child is simply too young, or perhaps immature or unable to express an opinion, or the child’s views are said to be affected by undue parental influence. The overriding consideration for the court is to ensure the “best interests of the child” remains paramount. A parent who is going through an emotional meltdown during the divorce may try to unduly influence a child against the other parent. The parent tries to force the child to take sides by brainwashing a child against the other parent and often the child may then completely reject the other parent, even hating the parent. Contact with the parent becomes all but impossible who is viewed as dangerous and unworthy.
It doesn’t happen in all divorces. I’ve found that this type of parent manipulation usually happens when the break up is so acrimonious and so vicious that the parent resorts to using the child as a weapon in the fight with the ex. Since both parents need to play a positive and meaningful part in the life of the child, parental alienation is undoubtedly harmful to the child. It goes against the best interests of the child.
With regard to the rights of grandparents over their grandchildren, grandparents don’t have automatic rights to their grandchildren. The primary role players always remain the parents of the child. However a grandparent may approach a court and request contact with their grandchild or ask the court to give them more extensive contact rights as the case may be, if the parent is refusing or severely limiting contact of the grandparents, and this is to the detriment of the child. Again in arriving at its decision the court will use “the best interests of the child” principle in whether or not to award the grandparents any specific rights to the grandchild.
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