Children, Custody and the Corona Virus
What does lock-down during the corona virus mean for parents with children?
In case you are co-parenting with an estranged partner or ex-spouse, the very first thought in your mind, on listening to the President’s statement concerning lock-down, was most likely: “What will this mean for contact rights?” It was undoubtedly one of the first concerns we had as family law attorneys.
The question on every parents mind, who are currently co-parenting, is “can I see my child/children during the lock down and will I be able to fetch and drop them”
Unfortunately, there is no simple answer to this question.
South Africa is heading into unprecedented territory where the call for us all to remain at home and only leave our house for the purposes of performing an essential service, obtaining an essential good or service, collecting a social grant or seeking emergency, life-saving or chronic medical attention.
The right to contact is not categorized or defined in terms of the amended Disaster Management Act.
However, if one has due regard to the Children’s Act, the interest of the child is of absolute paramount. Then the question that needs to be asked, “is it in the child’s best interest not to see the other parent” or “is it in the child’s best interest not to be exposed to a potential threat being COVID - 19”?
As discussed between ourselves and other family law practitioners we are of the firm belief that the parents need to put their selfish desires aside and act in the best interest of their child/children.
While we acknowledge that court orders are in place and may be lawfully enforced, the current imposition of the lock down must impact on the enforcement of the order ie: specifically moving the child during a time when movement of all members of the public except for essential services is strictly prohibited.
If the child is in a safe space with one parent there is no urgency that the shared custody must be enforced. There are ways of facilitating communication FaceTime Skype WhatsApp video. The parents should if possible amicably arrange electronic communication between the child and parent he/she is not with and the courts will not generally view an application to enforce shared custody as urgent, although this will be on a case by case basis. While there is no order that has been gazetted by government, parties who have the children in their primary residence, retain the children to ensure their safety from virus and lock down. The other parent who is going to be exercising contact must be given sufficient alternate means of communication with the child by means of video calling.
The South African Children’s Act guarantees that the best interests of the child are paramount in all matters relating to a child. This concept means that that, even where legislation does not determine conditions, all decisions you take must be in the best interests of your child. The parents are actually the main role players, not the courts.
Eventually, the best interests of the child are served through a proper functioning parental partnership between the parents and by putting the best interests of the child first and not the interests of the parents. Some parents may feel aggrieved and they may feel that the other parent is alienating the child, however, it is important to note that social distancing is there for a reason, i.e. to prohibit exposure to a virus that has disastrous consequences.
As moms and dads, we desire to do every little thing we can to shield our children from suffering, despair, damaging experiences, and from rejection, hurt emotions, and discontentment. Today there is something new that we need to protect them from: The danger of getting sick or infecting others with the coronavirus whilst their parents are in divorce litigation, battling over their custody, visitation, and access rights.
Throughout a divorce and undoubtedly afterwards, children frequently shuttle back and forth between each parent's household based upon a court-ordered visitation or parenting schedule. Exactly what happens if one parent or their household gets infected with the coronavirus? Exactly what happens when a parent or a household member lives in a neighborhood with an outbreak or has been subjected to an infected person but demonstrates no signs of being infected?
Just how will a court handle a parent's refusal to turn over a child to the other parent in such conditions? Exactly how certain must a risk of infection be to validate a parent's disapproval to follow with court-ordered access time?
Obviously, if a parent is contaminated with the coronavirus, a court will certainly not require that that parent have contact with the child during the course of this time period. It is just common sense. The more attenuated the worry that a child can contract coronavirus, the more complicated it is to explain withholding access to that parent. For instance, if the child's neighbor has a family member who has come down with the virus, but the child has had no contact with individuals in the neighbor's household, is it defensible to believe that he/she not travel to the other parent's home?
Courts will examine very carefully a parent's motivation in reducing contact between the other parent and child. When you are genuinely worried that there is a severe risk of contamination to your child posed by the parenting contact schedule, and you have convincing evidence that parenting time would definitely create risk of transmission, it is incumbent on you to bring those problems to the attention of the other parent and the court.
One would wish that two parents who love the same child would definitely recognize to take reasonable steps to guarantee that a child is not unjustifiably subjected to contaminated individuals. Regrettably, such is not usually the case always and mostly parents disagree on what is really in the best interest of a child.
No one would not agree that the coronavirus is having an immense effect on kids, moms and dads, communities, local businesses, and the global economy.
Skype, FaceTime and other forms of interaction are crucial to heading off unneeded conflict during what is currently an incredibly aggravating time for everybody, specially kids. Their day-to-day routines have already been upset by compulsory school closures in numerous areas, with no end date in sight. They need to negotiate how to respond if a child gets ill; they will need to make sure that they are taking all measures to shield their children. Courts will not deviate in their assessment of what is in the best interest of the child. Neither should the parents.
For further advice, contact the family law department of Maurice Phillips Wisenberg - familylaw@mpw.co.za
In case you are co-parenting with an estranged partner or ex-spouse, the very first thought in your mind, on listening to the President’s statement concerning lock-down, was most likely: “What will this mean for contact rights?” It was undoubtedly one of the first concerns we had as family law attorneys.
The question on every parents mind, who are currently co-parenting, is “can I see my child/children during the lock down and will I be able to fetch and drop them”
Unfortunately, there is no simple answer to this question.
South Africa is heading into unprecedented territory where the call for us all to remain at home and only leave our house for the purposes of performing an essential service, obtaining an essential good or service, collecting a social grant or seeking emergency, life-saving or chronic medical attention.
The right to contact is not categorized or defined in terms of the amended Disaster Management Act.
However, if one has due regard to the Children’s Act, the interest of the child is of absolute paramount. Then the question that needs to be asked, “is it in the child’s best interest not to see the other parent” or “is it in the child’s best interest not to be exposed to a potential threat being COVID - 19”?
As discussed between ourselves and other family law practitioners we are of the firm belief that the parents need to put their selfish desires aside and act in the best interest of their child/children.
While we acknowledge that court orders are in place and may be lawfully enforced, the current imposition of the lock down must impact on the enforcement of the order ie: specifically moving the child during a time when movement of all members of the public except for essential services is strictly prohibited.
If the child is in a safe space with one parent there is no urgency that the shared custody must be enforced. There are ways of facilitating communication FaceTime Skype WhatsApp video. The parents should if possible amicably arrange electronic communication between the child and parent he/she is not with and the courts will not generally view an application to enforce shared custody as urgent, although this will be on a case by case basis. While there is no order that has been gazetted by government, parties who have the children in their primary residence, retain the children to ensure their safety from virus and lock down. The other parent who is going to be exercising contact must be given sufficient alternate means of communication with the child by means of video calling.
The South African Children’s Act guarantees that the best interests of the child are paramount in all matters relating to a child. This concept means that that, even where legislation does not determine conditions, all decisions you take must be in the best interests of your child. The parents are actually the main role players, not the courts.
Eventually, the best interests of the child are served through a proper functioning parental partnership between the parents and by putting the best interests of the child first and not the interests of the parents. Some parents may feel aggrieved and they may feel that the other parent is alienating the child, however, it is important to note that social distancing is there for a reason, i.e. to prohibit exposure to a virus that has disastrous consequences.
As moms and dads, we desire to do every little thing we can to shield our children from suffering, despair, damaging experiences, and from rejection, hurt emotions, and discontentment. Today there is something new that we need to protect them from: The danger of getting sick or infecting others with the coronavirus whilst their parents are in divorce litigation, battling over their custody, visitation, and access rights.
Throughout a divorce and undoubtedly afterwards, children frequently shuttle back and forth between each parent's household based upon a court-ordered visitation or parenting schedule. Exactly what happens if one parent or their household gets infected with the coronavirus? Exactly what happens when a parent or a household member lives in a neighborhood with an outbreak or has been subjected to an infected person but demonstrates no signs of being infected?
Just how will a court handle a parent's refusal to turn over a child to the other parent in such conditions? Exactly how certain must a risk of infection be to validate a parent's disapproval to follow with court-ordered access time?
Obviously, if a parent is contaminated with the coronavirus, a court will certainly not require that that parent have contact with the child during the course of this time period. It is just common sense. The more attenuated the worry that a child can contract coronavirus, the more complicated it is to explain withholding access to that parent. For instance, if the child's neighbor has a family member who has come down with the virus, but the child has had no contact with individuals in the neighbor's household, is it defensible to believe that he/she not travel to the other parent's home?
Courts will examine very carefully a parent's motivation in reducing contact between the other parent and child. When you are genuinely worried that there is a severe risk of contamination to your child posed by the parenting contact schedule, and you have convincing evidence that parenting time would definitely create risk of transmission, it is incumbent on you to bring those problems to the attention of the other parent and the court.
One would wish that two parents who love the same child would definitely recognize to take reasonable steps to guarantee that a child is not unjustifiably subjected to contaminated individuals. Regrettably, such is not usually the case always and mostly parents disagree on what is really in the best interest of a child.
No one would not agree that the coronavirus is having an immense effect on kids, moms and dads, communities, local businesses, and the global economy.
Skype, FaceTime and other forms of interaction are crucial to heading off unneeded conflict during what is currently an incredibly aggravating time for everybody, specially kids. Their day-to-day routines have already been upset by compulsory school closures in numerous areas, with no end date in sight. They need to negotiate how to respond if a child gets ill; they will need to make sure that they are taking all measures to shield their children. Courts will not deviate in their assessment of what is in the best interest of the child. Neither should the parents.
For further advice, contact the family law department of Maurice Phillips Wisenberg - familylaw@mpw.co.za
