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Sweeping statements such as young children should reside with their mothers and/or contact with their fathers should be restricted to short periods of time, are untenable. Ordinary human experience tells one that the continued involvement, companionship, love and support from both father and mother after separation and divorce, enhances a child’s sense of security.
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Family Law Matters - Newsletter - November 2015
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Bertus Preller & Associates Inc., has been named South African Family Law Firm of the Year 2015 by ACQ5 Global Finance Magazine Law Awards 2015.

"By winning this award, our team demonstrates the exceptional capacity of its expertise. We are delighted to be recognised as a leader in Family Law in South Africa not only locally, but also internationally," said Bertus Preller, Managing Director of the firm

The Tender Age Doctrine

Baloyi v Baloyi [2015] ZAGPPHC 728:

In this case that concerned a divorce the main issue to be decided was the primary residence of the two minor children born from the marriage between the parties, a boy who of 6-years old and a girl of 4-years. Each party contended that it would be in the best interests of the minor children to reside with them and advanced a number of reasons in support of their contentions.

Facts

In this matter the court was faced with a situation where both the Father and the Mother are good, loving parents, who are able to care for their children. Whilst together the Mother was the primary caregiver. Since February 2014 the Father was caring for the children with the assistance of a nanny. 

Although the Father and the Mother’s relationship was very acrimonious, no serious allegations were made against each other. The Mother’s concern that the nanny was taking care of the children was not born out by the evidence. The children were at school during the day (until 13:30 and 15:30 respectively) and with the nanny during the rest of the afternoon.

During the evenings the Father took care of the children.  The Father also took the children to school. The Mother was a professional woman who was working and studying. The Mother’s further concern was that the children cried because they did not want to go back home to the Father. The Father on the other hand testified that at times the children did not want to visit the Mother.

The court noted that experience had shown that children will often give different versions to different parents in a situation like the present.  The children did not want to be separated from either parent and still indulge the hope that their parents would reconcile.

The Father’s concern was that the Mother was not always exercising her contact.  The Mother on the other hand testified that the Father sometimes frustrated her contact with the children. The court noted that from the evidence it was not a case of lack of interest on the Mother’s part, but that she was rather worn out by the continued conflict between her and the Father over the children.

The Family Advocate’s concern was that the Mother was not frank and truthful with the children about the divorce, which may have created a false sense of comfort which in turn may have led to instability on the part of the children. The Mother’s aforesaid conduct as well as her failure to contribute towards the children’s maintenance was in the court’s view, indicative of a lack of insight on her part in what was in the children’s best interests. The Mother had furthermore chosen to concentrate on her studies and the court noted that together with any kind of employment, it could have made stiff demands on inter alia her free time. The Father had shown remarkable commitment.  He had on the other hand re-arranged his life to best suit the children.  He was able to spend time with the children, communicate with them and fulfil the nurturing role.

Experience has shown that the companionship of children’s parents is of inestimable value to the children.
The court was particularly struck by the fond manner in which the Father spoke about his daughter. The children were doing well at school.  They appeared to be happy and secure.

The Law

The evidence revealed that both the father and the mother were loving and capable parents who were at various stages the minor children’s principal carers. The children were too young to express their own views.

In P v P 2007 (5) SA 94 (SCA) at para [14] it was held that:

“Determining what custody arrangement will serve the best interests of the children in any particular case involves the High Court making a value judgment based on its finding of facts in the exercise of its inherent jurisdiction as the upper guardian of minor children…”

The factors set out in Section 7 of the Children’s Act, Act No. 38 of 2005, constitute a non-exhaustive check list of criteria which serve as guides relevant to the application of the best interest standard.


The question of what a child’s best interests are must be determined according to the facts and particular circumstances of each case and not on generalisations such as the “tender age” doctrine or the principle of “preserving the status quo”.

Undue weight should furthermore not be placed upon any one factor, but these factors, like all other relevant factors, must first of all be considered against the backdrop of the specific circumstances of each case and secondly weighted against all other relevant factors to be considered in determining what would be in the best interests of the child.
    
The Constitutional Court in AD & DD v DW [2007] ZACC 27; (2008 (3) SA 183 (CC) held that:

“To apply a pre-determined formula for the sake of certainty, irrespective of the circumstances, would in fact be contrary to the best interest of the child concerned”.

In her work, “Divorce mediation and the best interest of the child” Lesbury van Zyl on p 67 makes the following remarks in respect of the principle of preserving the status quo:

“Judges, being aware of children’s need for security and stability, are reluctant to move them and so cause them further distress than the family break-up has already occasioned.  However, this is not always a wise policy, for it means that permanent custody is often awarded on the basis of an arrangement made when the parents were in turmoil and least able to make reasonable decisions.  Here too, as with the maternal preference rule, the lawyer’s knowledge of the strong influence of the status quo may influence the advice they give their clients. Besides, if parents, who have temporary custody realise that they are in a superior bargaining position, they may try to delay proceedings, since the longer they have temporary custody the stronger their position, become.”

Sweeping statements such as young children should reside with their mothers and/or contact with their fathers should be restricted to short periods of time, are untenable.

Ordinary human experience tells one that the continued involvement, companionship, love and support from both father and mother after separation and divorce, enhances a child’s sense of security.

In Chodree v Vally 1996 (2) SA 28 (W) at 32 F-G/H it was held that: “… love and affection from both also enhance the security and stability of a child…”

The Court should further not only take a short term view of the possible unsettling effects occasioned by any change in the children’s lives, but also consider the possible long term benefits to be obtained in each specific case.

Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce.

In M v M 1973 (2) All ER 81 (Fam Div.) 85 it was held that:

“Where the parents have separated and one has the care of the child, access by the other often result in some upset in the child.  Those upsets are usually minor and superficial.  They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turns against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.”

There is further no doubt that over the last number of years the roles and responsibilities of parents within the family structure as well as social norms and patterns have changed.

Fathers have also taken up parenting roles, and mothers have also followed careers.  The norm these days is rather that of working parents who manage with the assistance of aftercare, domestic workers and family.

It was held in Van Pletzen v Van Pletzen 1998 (4) SA 95 (O) at 101 B-D/E that mothering is not only a component of a woman’s being, but is also part of a man’s being, and that a father, depending on the circumstances, possesses the capacity and capability to exercise custody over a child as well as a mother.

In Van Der Linde v Van Der Linde 1996 (3) SA 509 (O) at 515 it was held that the concept of mothering is indicative of a function rather than a persona. It includes the sensitive attachment which flows from the attention devoted from day to day to the child’s need of love, physical care, nutrition, comfort, peace, security, encouragement and support.

In V v V 1998 (4) SA 169 (C) at p176 it was held that:

“The old position where the custody of young children was invariably granted to mothers has change.  As far as young children are concerned, the pendulum has swung to accommodate the possibility of a father being a suitable custodian parent to young children.”

Therefore primary residence and contact were not to be given on preconceived notions, assumptions or judicial preferences but must be the result of a well-considered decision based on an individual and full investigation.

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