South Africa: Child custody in South Africa – What to do when co-parenting goes flawed

The COVID-19 lockdowns separated many families, giving them limited time to decide who would live where and with whom. In other cases, it cemented the rift that already existed for the noncustodial parent. After the COVID lockdown, some parents are still in a tug-of-war over the children despite custody agreements.

There are cases when the conflicts between parents cause emotional damage to children. In extreme cases, a child displays unwarranted hostility toward one parent as a result of psychological manipulation by the other.

Not much has been done to officially recognize parental alienation in South African courts. Nonetheless, the law is committed to the best interests of the child as defined in Children’s Act 38 of 2005. This includes the child growing up in a peaceful and loving environment free from abuse and mistreatment. Parental alienation destroys this environment. There are a number of cases where mothers and sometimes fathers have lost custody of their children after being accused of “parental alienation”.

In a recent book chapter, I took a closer look at the psychological effects of parental alienation. I have further unpacked the civil remedies available to an affected parent. And suggested that parents have a valid claim to emotional distress and harm in this situation.

What is parental alienation?

Parental alienation is a recurring problem that affects many families who experience many conflicts, breakups and divorces. Parental alienation can be defined as a process in which one parent undermines the child’s previously intact relationship with the other parent.

It creates a situation where the alienating parent teaches the child to reject the other parent, to fear the parent, and to avoid contact with that parent.

Parental alienation is a global problem. For example, in 2010 Brazil criminalized parental alienation.

What is the impact?

Parental alienation has emotional consequences – for the adults affected as well as for the children.

When a parent’s behavior causes a child to reject the other parent, the alienated parent’s emotional response usually includes feelings of powerlessness and frustration, stress, loss, sadness, anger, fear and pain, fear, lack, humiliation, and unloving .

Ultimately, the estranged parent experiences the agony of losing a child, causing immense emotional pain and suffering. This is similar to loss and is associated with continued concern for the child.

The alienated child generally feels insecure, anxious, and overwhelmed, and experiences guilt and confusion. This child may be confused about adult-child roles, especially when they are older, e.g. B. in the teenage or teenage years.

When the child emotionally manipulates the situation to find an emotional partner, this is known as triangulation and is a common feature of parental alienation.

Children have a responsibility and obligation in this situation to intervene and protect and care for the victim parent.

what can be done

Unfortunately, criminal remedies cannot provide a system of compensation for an alienated parent wrongfully harmed by intentional or culpable conduct.

Tort law offers this relief. Tort is a civil remedy offered to a victim who has suffered harm or injury at the hands of another person. At the heart of the delicate principles are the views of society. These include legal and regulatory considerations as well as constitutional rights and norms.

Most South Africans are unaware that, as a victim, they can claim compensation for injuries and damages sustained. An estranged parent can sue for defamation if their case warrants it.

In addition to this remedy, I believe an estranged parent should also investigate claims of emotional harm he or she has suffered.

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For an estranged parent to make claims based on emotional shock, they would need to successfully prove all elements of the tort when weighing the probabilities. It is accepted that where there is a claim for emotional shock and mental harm where only mental harm has been suffered, the courts are open to all cases and can award liability for any conduct that causes mental harm, either intentionally or negligently.

South African courts should be willing to hear cases where the alienated parent only suffers psychological harm. But it would require the alienated parent to demonstrate demonstrable and recognized psychiatric injury or impairment that is not temporary or minor.

This additional legal avenue will assist a victim in providing them with the necessary psychological help they need. It would also give them the comfort that their attacker would not get off so easily. This will also serve as a deterrent in the future.

Franaz Khan, Senior Lecturer, University of Johannesburg

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