Child custody in South Africa: what to do when co-parenting goes wrong

Parental alienation can be defined as a process whereby one parent undermines the child’s previously intact relationship with the other parent.
Parental alienation can be defined as a process whereby one parent undermines the child’s previously intact relationship with the other parent.
Image: 123RF/tomwang

The Covid-19 lockdowns severed many families, where they found themselves having a limited period to decide who would live where and with whom. In other instances, it cemented the divide which already existed for the non-custodial parent. Post-Covid lockdowns some parents still find themselves in a tug-of war over the children despite custody agreements.

There are cases where the levels of conflict between the parents cause emotional harm to the children. In extreme cases a child manifest unjustified hostility towards one parent as the result of psychological manipulation by the other.

Not much has been done to officially recognise parental alienation in South African courts. Nevertheless the law advocates for the best interests of the child in terms of the Children’s Act 38 of 2005. This includes the child being raised in a peaceful and loving environment free from abuse and ill treatment. Parental alienation destroys this environment. There are a number of cases in which 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 further unpacked the civil remedies available for an affected parent. And proposed that parents in this situation have a valid claim for emotional distress and harm.

What is parental alientation?

Parental alienation is a recurring problem that affects many families who are experiencing high conflict, separation and divorce. Parental alienation can be defined as a process whereby 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 having contact with that parent.

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

What is the impact?

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

When a parent’s conduct leads a child rejecting the other parent, the alienated parent’s emotional response usually includes a sense of powerlessness and frustration, stress, loss, grief, anger, fear and feelings of pain, anxiety, deficiency, humiliation and being unloved.

Ultimately, the alienated parent experiences the anguish of the loss of a child causing immense mental pain and suffering. This is similar to loss and is combined with the continuing concern for the child.

The alienated child generally feels insecure, anxious and overwhelmed, and experiences feelings of guilt and confusion. This child may be confused as to the adult-child role, particularly if they are older, such as pre-teen or teenage.

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

Children in this situation responsible and obliged to step in and protect and care for the victim-parent.

What can be done?

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

The law of delict offers this relief. Delict 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 delictual principles lie society’s views. These include legal and public policy considerations as well as constitutional rights and norms.

Most South Africans don’t know that they can claim compensation for injury and harm sustained if they are victims. An alienated parent can claim for defamation if their case warrants it.

In addition to this remedy, I am of the view that an alienated parent should also explore the claim of emotional harm that he or she has suffered.

For alienated parent to claim on the basis of emotional shock, they would have to successfully prove all the delictual elements on a balance of probabilities. It is accepted that with a claim for emotional shock and harm where there is only psychological harm suffered, courts are open to hear all cases, and can impose liability for any conduct that either intentionally or negligently causes psychological harm.

South African courts should be amenable to listen to cases where the alienated parent suffers only psychological harm. But it would require the alienated parent to prove a detectable and recognised psychiatric injury or lesion that is not passing or trivial.

This additional recourse will assist a victim in providing them with the necessary psychological assistance that they require. It would also provide them with the comfort that their aggressor would not be let off easily. This will also serve as a deterrent in future.

Franaaz khan: Senior lecturer, University of Johannesburg

This article was first  published in The  Conversation.

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