Minor children, and more often than not the major student-child, have a very difficult role to play in divorce proceedings.
Their whole lives are turned upside down, what was always known as their homes are being divided, their family structures are being changed. Lawyers they have never met, are advising on how to live their lives going forward and they are mostly expected to adapt immediately to a new contact regime and a new way of living, that mostly suit their parents, but that they have never experienced.
Children are often left in the dark (rightly so) about most of the details of a divorce action, which spans so much further than contact and care disputes, but all the underlying disputes still have a very big impact on how they are experiencing the divorce process, how they are expected to react, how they observe their parents and how they are expected to continue living after date of divorce.
We often read that “the best interest of the minor child” is one of the most important considerations during divorce proceedings, but how is the best interest of the children determined and how do they get to have a say or an opinion about one of the most traumatic and life changings events: their parent’s divorce.
Section 10 of South Africa’s Children’s Act, 2005, guarantees children the right to participate in matters concerning their care and well-being, in a way appropriate to their age, maturity, and stage of development. This means children have the right to express their views and have those views given due consideration.
The minor children’s views can be expressed and considered in divorce proceedings, as follows:
a) By way of a Family Advocate’s assessment: The Family Advocate’s Office is a State Institution that plays a crucial role in assisting families and courts in matters related to child contact, care and guardianship particularly during divorce proceedings.
The Family Counsellor and Family Advocate will initially meet with both parties and then the Family Counsellor will have further sessions with the minor children, and he/she contacts approved collateral sources.
The assigned Family Counsellor and Advocate will then file a report and a recommendation on how contact and care should be exercised by the parents upon divorce, which is in the minor children’s best interest.b) c) Unfortunately due to the volumes of work the Family Advocate’s process is a lengthy one.
However, as it is State-funded, it is free.
The Family Advocate, in the event of a contact and care dispute, will also be available to testify during the divorce trial.
b) By way of an expert in private practice:
This expert is normally a Social Worker, Forensic Social Worker or Psychologist that specializes in contact and care disputes and has the necessary qualifications to do contact and care assessments and to file a report and recommendation on how contact should be exercised by both parents, that will serve the minor children’s best interests.
The private expert’s process is much more detailed, and they have several sessions with the minor children, the parents and collateral sources. The private expert’s process is also much more time-effective, however often comes at a great cost.
It is very important to appoint an expert that can assist and testify during a divorce trial.
c) By way of a “voice of the child assessment”:
This expert is normally a Social Worker, Forensic Social Worker, Psychologist, Mediator or Play Therapist that has the necessary qualifications to do a voice of the child assessments and to file a report and make recommendations on how contact should be exercised by both parents, according to the minor children’s views and wishes.
The voice of the child assessment is not formal therapy or an assessment per se, it ismore engagement sessions by an expert, who considers the minor child’s personality, temperament and bond with each parent. During these “assessments” the moving between households and the impact it has on minor children is specifically considered. This expert will then, considering the children’s ages and developmental stages, make a recommendation on an ideal contact schedule.
This process is not as detailed as the private expert’s process, as it is not a comprehensive assessment but rather a recordal of the views and wishes of the minor children, evaluated according to their age, maturity and stage of development. The feedback is first of a verbal nature and includes a joint session with the parents, who can deliver insight into the day-to-day workings of their respective households. This expert can also monitor a trial contact schedule, to be changed, as needed and as required by the minor children.This process, as mentioned above, is not as detailed as the others, but may at times be more cost- and time effective, especially if a previous comprehensive assessment has already been done.
It is important to remember that enrolling a child in therapy during divorce proceedings can be of great value. Not only does this process assist the children to deal with his/her questions, doubts, fears, and trauma of adapting to new contact regimes. The therapist usually has a very strong bond with the child, and the therapist can be consulted by an expert doing the contact and care assessment, to also obtain the children’s views and wishes.
Most experts can only really assess children after the age of 4 (some even later) and as we normally have parents sign a Parenting Plan, confirming the contact and care regime as at date of divorce, this is often a whole new regime that is being forced upon children, to which the children may not adapt or as they develop might find difficulty with in committing to the regime. It is therefore very important that the children must always have a “safe person”, someone “outside of the fight” that they can be honest with and to whom they can express their wishes and concerns; however, this expert must also be qualified enough to determine whether the minor children’s wishes are compatible with their needs.
Family Law Practitioners have great respect for these experts, and we trust their guidance to advise our clients on how to make their children feel loved, heard and protected during divorce proceedings.
For any Family Law matters, please contact Marelize Meintjes at Faure & Faure Inc.
To make an appointment you can email contact@faurefaure.co.za or call 021 871 1200
Article written by Faure & Faure Inc Director, Marelize Meintjes
For more information, contact 021 871 1200 or email contact@faurefaure.co.za.