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Bitter custody battle to be decided soon

Publish date: 02 December 2019
Issue Number: 852
Diary: IBA Legalbrief Africa
Category: Family

The fate of three children whose father took them overseas without their mother’s permission will soon be decided by three Western Cape High Court judges, says a Times Select report. The full Bench reserved judgment in the bitterly contested custody case this week after hearing arguments from the parents’ lawyers as well as an advocate appointed to represent the children’s interests. Judges Owen Rogers, Kate Savage and Lister Nuku heard evidence about the psychological trauma suffered by the children, who are between eight and 14, as a result of the ‘unhealthy influence’ of their warring parents. The trio, who were taken to Alaska in April, have been back in Cape Town since mid-November after the court ordered their father to return them so the custody battle could be settled. The parents divorced six years ago, and the father lives in Alaska with his new wife. This week’s hearing was to consider an appeal by the mother against a court order which allowed the father to take the children abroad. The mother said the order was made without her being consulted. Lawyers for the father criticised the mother’s parenting style and alleged neglect, saying she beat her children with flip-flops and wooden spoons and sent them to school untidy and inappropriately dressed. The mother’s lawyers said the ‘physically absent father’, who spent most of his time abroad, encouraged their eldest son (14) to alienate his mother. It was also claimed that the mother carries most of the family’s financial burden because her ex-husband had a chequered employment record and often defaulted on his maintenance payments.

Advocate Jolene Bernstein, tasked to represent the interests of children and provide a report, said the responsibility had left her overwhelmed at times and unable to sleep. The parents’ lack of insight, and their inability to allow their children to have healthy relationships with each other, had exacerbated the situation, she said, adding that the custody issues were so complicated there were no obvious answers. For the parents everything was ‘all about the litigation rather than the kids’ best interests’. According to Times Select, she said the experts who compiled the report for the court reached a consensus that there was no point in canvassing the children’s views on the custody matter because of the way their parents had influenced them. The ‘easiest’ solution could be to allow the children to go to Alaska, where the eldest brother felt most comfortable. But that could further expose them to negative influence and further alienate the mother. Bernstein said that since their return to Cape Town, the children had reported some improvement in their relationship with their mother. The court is expected to make its decision before 15 December, since the father has to be back in the US before his green card expires.

Full Times Select report (subscription needed)