Child Custody In South Africa Abandonment Of Children And Mothers Custody Rights

In child custody cases in South Africa where there has been proof that the father has emotionally, physically and or mentally abused his child or children in the past, it is then up to the biological father to prove to the courts that he has changed and is no longer abusive to his children. Once this has been accepted and approved by the courts the father is then usually allowed limited supervised access to his child or children. This supervision is provided to the father is often in the form of a social worker who will accompany the father when he visits his child or children. The divorced biological mother of the child or children may apply to the High Court for an order to terminate access to the father in severe cases.

What biological fathers and mothers need to understand is that there is no hard and fast law that details exactly how each aspect of child custody in the above mentioned circumstances should be resolved. The way in which each case is handled and resolved depends on the common sense and related reports generated by the respective social workers and psychologists involved in each of these child custody cases in South Africa. Cases in which access was suspended or refused are set out in The Law Of Access To Children by Lawrence Schafer are as follows, quote “In Pogieter v Potgieter, the father was “addicted to drink”, behaved in a “riotous manner”, used abusive and disgusting language and had threatened the mother with violence. His behaviour had an obviously detrimental effect on his children. The judge refused to deny him access completely but suggested that he make a fresh application a year later.

In Soller NO V G, exemplifies the circumstances in which access might be refused out right. The divorce and subsequent proceedings were characterised by a remarkable degree of bitterness and animosity between the parents. The decree of divorce had expressly precluded “reasonable access to the said children, such including telephonic access.” Sole custody and sole guardianship were awarded to the mother. But the father was advised of his right to apply for variation of this order “should the circumstances vary. He did so and was granted access shortly afterwards. This was just the tip of the iceberg. The various issues between the parents engaged the attention of at least twelve judges within one division and the litigation was characterised by “extraordinary levels of irrationality”. In the circumstances, the father was refused access totally” end quote. The actual problem with all these applications is that it seems that there is a severe scarcity of family advocates, people who are specifically assigned by the High court to come up with a resolution to all these cases and this causes these cases to take months to be concluded and resolved.

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