When mom and dad decide to get a divorce, the effects on children are frequently often overlooked.
The reality is that children will end up with some sort of "baggage," both during and after the divorce takes place. However, it is up to the parents to determine what the extent of the "baggage" might be.
Parents, who have given the children life, are often perceived by their offspring as "Superdad" and "Wondermom" with supernatural abilities, and no problem is too great for their parents to handle. However, children are also very often blind to their parent's flaws.
Unfortunately that parents often use children as pawns during a divorce, without realising the actual damage they are causing long-term.
Children are not only affected by the issues which relate directly to them, for example, primary residence, contact, and maintenance. The other disputes between parents and the acrimony between them also affect their children. Especially when mom and dad fight, the children are forced to see "Superdad" and "Wondermom" crumble.
Sadly, some attorneys fuel the fire and acrimony, since this also feeds their own pockets. At the end of the day, the longer the litigation continues, legal fees continue to increase significantly.
Section 6(4) of The Children's Act (the Act), specifically states that "in all matters concerning a child an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided." Our courts have also confirmed that this is the approach to be taken in the matters of MM vs. AV (2901/2010)  ZAWCHC 425 and S vs. L (728393/2016)  ZAGPPHC 929.
In some cases, it is wise to appoint a curator ad litem or legal representative for the minors, additionally, refer the children to a psychologist to ensure that their views and wishes are also heard and taken into account, without the influence of mom or dad's own opinions.
Section 10 of the Act stipulates that "every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration."
It is important to bear in mind that children can be easily swayed, manipulated, and often end up confused. It is not unusual for a child to "choose" their mother one weekend, only to then "choose" their father when they are with them. The Act is silent as to what age a child is regarded as "mature enough" to make such decisions and is also silent as to what "appropriate participation" is.
Parents are, however, advised to note that the Act states that the views of a child must be given due consideration. This does not mean that the child can "choose." The court remains the upper guardian of minor children, and should a child's wish not be in his or her best interest; it shall make an alternative order.
It is important to identify an attorney that does not only adhere to Section 6(4) of the Act but is also fully abreast of the latest case law and interpretation thereof. At Adams & Adams, we put children first. We take all possible steps to deal with a matter expeditiously and as amicable as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.