Every parent has rights and responsibilities towards his/her children, whether married or unmarried; all parents are afforded these rights. Bearing this in mind, it is crucial that these parental rights are exercised in a manner that promotes the best interest of the child as expressed in the Children's Act 38 of 2005
Section 28(2) of the Constitution of the Republic of South Africa, 1996, confirms this by stating that “the child's best interest is of paramount importance in every matter concerning the child”. The rights afforded to parents in terms of the Children's Act include care for a child, keeping contact with a child, acting as guardian of a child, and contributing to the maintenance of a child. The question is, what happens when one parent withholds access to a child? May a parent withhold paying maintenance in such an instance?
Parental alienation is where one parent denies the other access to a child and is common in many situations where the relationship between the parents has broken down. It occurs where one parent refuses access to the child with the aim of emotionally manipulating the child to reject and emotionally distance themselves from the other parent.1 It is crucial to note that in South Africa, parental alienation is impermissible as it violates Section 28(2) of the Constitution and Children's Act 38 of 2005 as it is contrary to the principle of the “best interest of the child” and parents who do so are committing a form of child abuse.2
What Can The Aggrieved Parent Do In Such Instances?
If there is a maintenance order in place, a parent may approach the court for relief on the basis of Section 35 of the Children's Act.
Section 35 of the Children's Act provides that:
“(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22 (4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
The aggrieved parent can institute contempt of court proceedings which will result in a criminal charge being brought against the alienating parent. This party must prove beyond a reasonable doubt that an order was granted, the other parent had knowledge of this order and that the other party is not complying with this order.3
What If There Is No Maintenance Court Order?
Where there is no court order, the aggrieved parent may approach an attorney in order to draw up a parenting plan which will assist both parents to arrange care, contact and visiting hours4
May A Parent Withhold Payment Of Maintenance In Instances Of Parental Alienation?
A parent cannot be refused contact with a child; similarly, a parent cannot withhold payment of maintenance on the basis of refusal of access to the child. Both parents would be in violation of the Children's Act and the Constitution. What is crucial to note is that the maintenance of a child and the rights a parent has to the visitation of a child are disconnected. Section 15(1) and 15(2) of the Maintenance Act 99 of 1998 specifically states that a maintenance order is directed at enforcing the common law duty of the child's parents to support the child and such duty extends to the support a child reasonably requires such as proper living and upbringing, food, clothing, medical care and education. This section specifically separated the responsibility to support as well as care and contact of the child.
While the other party, in instances of parental alienation, may be tempted to retaliate and neglect to pay child maintenance, this is also impermissible by law as it is not in the best interest of a child to be denied child maintenance. However, the aggrieved party is not left at a dead-end. He/she may approach the court to institute contempt of court proceedings against the spouse alienating the child.
While every parent is afforded rights and responsibilities, the possession of these rights does not afford any parent the right to alient a child from the other parent and this is specifically prohibited in Section 35 of the Children's Act of 2005. It may be tempting for the aggrieved parent to withhold payment of maintenance in such circumstances however this is not as both parents are then in contravention with the law. The best solution for the aggrieved parent is to approach an attorney and institute contempt of court proceedings where the court will make a decision considering the best interest of the child which could be a warning, fine or imprisonment.
1 Khan date unknown https://www.findanattorney.co.za/content_parental-alienation Date of access: 19 November 2021
2 https://www.divorcelaws.co.za/parental-alienation.html 19 November 2021
3 News24 2017 https://www.news24.com/news24/SouthAfrica/Local/Express-News/can-i-enforce-my-rights-20170509
4 Bregmans 2014 https://www.bregmans.co.za/not-allowed-to-see-your-children-shando-theron/ Date of access: 19 November 2019
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.