What’s best for the child? Judges disagree

Durban - A court bid by a Durban mother to relocate to Zimbabwe and take her young son with her has sparked a legal dispute among KwaZulu-Natal judges over whether mothers or fathers suffer the most parenting prejudice after divorce.

The matter before the three judges was the mother’s appeal against a previous court ruling denying her permission to take the child out of the country.

And while they agreed for a variety of reasons that the appeal should fail, there was little else they could agree on.

One, Judge Peter Olsen, said he supported a Supreme Court of Appeal judgment which focused on possible “unfair gender discrimination” because mothers were usually the custodian parents whose movements were restricted, while the fathers, as non-custodial parents, had no reciprocal legal obligation to maintain contact with the child and could relocate at will.

Citing the case, he said refusing relocation applications had a potentially disproportionate impact on women, “restricting their mobility and subverting their interests and personal choices”.

Judge Olsen noted that in evidence at the trial, the psychologist who had recommended that the young child stay in South Africa and in contact with his father had said: “My Lord, I found this particular matter very upsetting, she wants to be in Zimbabwe.

“She wants to be (with her new boyfriend) and her family. And it doesn’t sit comfortably with me that I am saying that she needs to give up all those things in order to do what’s in the best interests of the child. It does not sit comfortably with me at all.”

But Judge Piet Koen, with Judge Anton van Zyl concurring, said he did not believe the SCA judgment stated a “principle of universal application”.

“I wish to caution against its unqualified acceptance and application in all matters which might restrict the freedom of custodian parents, the primary consideration must always be the best interests of the child.”

He said it was true that often fathers were the non-custodian parents “because the division of parenting roles unfortunately remains gender based, notwithstanding the constitutional guarantee of equality”.

“Fortunately this slavish adherence to this kind of arrangement is fast being eroded. But the reality remains that the typical order awarding care to mothers has a potentially disproportionate impact on men.

“Caring non-custodial fathers suffer severe discrimination arising from being denied regular contact with their children. The notion that they can relocate at will is a cynical approach. A caring father will want to maintain regular contact and the residence of the mother restricts his mobility.

“There are no facts in this present case to apply the principles stated in the SCA judgment.”

In the main application, and again on appeal, the judges noted that the parents had conceded that the other was good and caring.

The mother, however, had lost her job, met a new man and wanted to relocate.

In resisting the proposed move, the father said he would be relegated to the role of an “occasional visitor” and her boyfriend would become the father figure.

Evidence was that the child, then about 4 years old, was sensitive and would be affected by the relocation and distance from his father.

The Mercury