Plight of fathers precluded from their paternal obligation
Children without mothers suffer, but so do children without fathers. Shared parenting is a sound idea if both parents place their own self-interests second to those of their children.
We live in times where a lot is said about how men desert their children, but we don’t hear about how some men cannot be fathers because they are precluded by the mothers of their children, and to some extent, by the law. My discussion focuses exclusively on that category of men who are willing to get involved in parenting but find themselves precluded from their paternal obligation. Quite a number of men wish to be fathers that can contribute to the growth and development of their children.
For the sake of convenience, I am going to assign gender roles along the most prevalent situation, being that the woman is the custodial parent (the one with whom the children live) and the man is the parent that is being denied contact and wants contact with his children. Hence, this piece controverts the most common prevailing narrative, that of women who raise their children as single parents because men have absconded their role.
The argument that children are always better off when entrusted to the care of the father is not a widely shared view. Children without mothers suffer, but so do children without fathers. Shared parenting is a sound idea if both parents place their own self-interests second to those of their children.
I am a proponent for joint physical care, where both parents have the right to live with the child and to assume responsibility for the upbringing of the child. I am cautious not to use the term “custody” since the Children’s Act 38 (Act 38 of 2005) has replaced it with the broader concept of “care”; whilst the term “access” has been changed to that of “contact”. Custody is defined as “the legal right to take care of a child and have direct responsibility over the child”. The definition of “care” is extended beyond mere custody to include inter alia (i) caring for the child; (ii) supporting and guiding the child; (iii) assuming responsibility for the child’s general upbringing and welfare.
Revisiting the model
There is no doubt that children need both parents. A parent should never alienate a child from the other parent. Separated parents can be parents even if they are no longer lovers; children should have a relationship with both of their parents. After a separation most estranged parents want relationships with their children. But there are potential hindrances – especially for men.
The law tends not to favour men to take care of their offspring in cases of disputes. The Children’s Act in particular seems to marginalise men. There is a central theme running through the Children’s Act, that is to act in “the best interest of the child”.
What does the best interest of the child mean?
The best source is section 7 of the Children’s Act which primarily looks at the relationship between the parent seeking contact, and whether it is beneficial to the child; the attitude of the parent seeking contact towards the exercise of their parental obligations in respect of the child.
The court will want to know why the parent seeking contact desires to exercise their parental obligations and play an active role in the child’s life. Here more than ever you will need to explain to the court that it would be to your child’s benefit.
Some women exploit the partiality of family law to exclude men from having contact with their children. Most men assert that fathers are discriminated against as a result of gender bias in family law. There is a call for greater equality in parental responsibility following separation and divorce. According to the view of the South African courts, sole physical care is detrimental to the other parent and is not in the best interest of the child to have only one parent involved in his or her upbringing. And yet, the courts are reluctant to grant joint physical care to both parents, in which equal rights as far as making decisions on the upbringing of the child, are shared. Sole physical care is instead awarded to one parent on the notion that the other parent has contact and visitation rights.
A number of fathers criticise the best interests of the child standard currently used in family law for making parenting decisions, which they describe as highly subjective and based on the personal prejudices of family court judges and court-appointed child custody evaluators, and that courts are abusive when more than half of parental rights are taken away from a willing, competent parent, especially by overlooking the totality of the circumstances in deciding which parent should have primary physical care. The courts typically interpret the accepted “best interest of the child” standard as a presumption that the care of the child should be with the mother.
In extreme cases women repudiate men to the detriment of children, and use their children as a tool for retaliation to express their exasperation at the relationship gone awry, especially against men who they feel have dented their self-worth.
There are many fathers who are yearning to be present to witness the efforts of their children striving upward. Like mothers, these fathers want to share with their children their own experiences that can help the young avoid any pitfalls in life. I presume that most men will want to pass on some emotion, a bond and heritage to their children.
Above all, it gives the children and the father a sense of belonging and family. It contributes to identity and can build self-esteem.
We should speak honestly about the reasons, circumstances and contexts that see men fail to be fathers. There are no easy answers. But we have to delve deep into the circumstances that makes men succeed or fail to be fathers and parents. It is not about the altercations between a man and a woman; it is about the child.
Studies have shown that children in a joint physical care settings are better adjusted and have fewer social problems such as low academic achievement, crime, substance abuse, depression and suicide. Where appropriate, shared parenting is in fact in the best interests of the child and is something our society should strive for.