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Divorced parents navigate lockdown rules on custody of kids

29 March 2020 - 09:52 By TANYA FARBER
Under lockdown rules, children may not be moved between parents who share joint custody. Stock photo.
Under lockdown rules, children may not be moved between parents who share joint custody. Stock photo.
Image: 123RF/Jozef Polc

Lockdown rules for divorced parents caused tension this week with some still believing — right up until the midnight start — that not moving children between homes was advised rather than set down in the regulations.

But any doubt remaining was swiftly erased by social development minister Lindiwe Zulu who said at an interministerial briefing on Saturday: “We have clearly stated that the movement of children during the lockdown period is prohibited ... The child shall remain in the custody of the parent they were with when the lockdown was effected.”

This was to “ensure the child is not exposed to any possible infection” during transfer.

It is an issue that relates to many families. According to Stats SA, the country sees about 25,000 divorces per year, and more than half of those (55%) involve children under the age of 18.

This means that the lockdown rules potentially affect up to half a million parents in the country who have split over the past 18 years.

On Monday night, after President Cyril Ramaphosa announced the lockdown, the full regulations of how it would play out were not available.

A list of regulations from European countries then circulated on social media bearing a SA government letterhead, saying, “minors may be taken to the home of the other parent, safety measures must be applied”.

Shortly after that, it was circulated again, but this time with red letters stamped over it saying, “fake — not applicable to SA”.

The issue was raised again at a press conference broadcast to the nation.

Zulu said at the time that visitation rights still needed to be discussed, but would be guided by the principle of curtailing movement.

The following day, the message shared on social media was: “We request that children remain with the primary custody holder and should only be moved with exceptional circumstances. No children should be moved for the duration of the lockdown.”

This left parents very little time to negotiate with one another.

“It caused untold misery,” said Jason Golding [not his real name], “because my ex and I both felt our own house is better for the circumstances. We fought over things that I guess many so-called ‘blended’ families are fighting over ... which house has more space, better entertainment options, fewer stepkids in the mix, you name it.”

A Cape Town mother, who did not want to be named, said the whole family had to dig deep to resolve it.

“We are treading uncharted territory . ... We agreed for the children to ‘decide’ and not ‘choose’ which home they would stay at for the three weeks. It has been a decision of what's best for our health and safety coupled with what's in the best interest of the children and us as parents. It was essential that we all speak together and clarify there is no offence taken by either party,” she said.

During the negotiations, she and her ex received “a very heartwarming message from the children of the guilt and anxiety they faced” as the three of them [the children]faced the prospect of being apart for the first time.

“They asked us to please be amicable and respectful of each other despite our differences,” she said.

Another dad said he and his ex decided to sneak in one “swap” in the parking lot outside a food store during the lockdown.

“My ex and I have a daughter of 14. We normally have a 50-50 arrangement,” he said, “We don’t have an amicable relationship at all and split up five years ago but it was easy to decide for the lockdown. The exchange won’t be difficult because we live in the same suburb.”

He added, “I’ve been amused by the sudden clarity on booze but there wasn’t such immediate clarity regarding visitations.”

According to divorce attorney Simon Dippenaar, the Children’s Act ensures that the interests of the child comes first, but “some rights have to be subverted to ensure more important rights”.

“The right to freedom of movement is not as important as the right to life, if curtailing movement preserves life,” according to Dippenaar.

He said that “ultimately, the interests of the child are served by having healthy parents and a functioning society ... if restricting the transfer of a child from one home to another facilitates these outcomes, then it could be argued it is in the best interests of the child.”

This was only in the context of the pandemic because in “normal circumstances, being deprived of contact with a parent would not be in the interests of the child, but these are not normal circumstances”.

Fouzia Ryklief, counselling co-ordinator at The Parent Centre in Cape Town, advised that the parent with the child or children during lockdown should be transparent with the children.

“Talk about why they cannot have physical contact with the other parent and explore with them how they can connect with the other parent,” she said,

“Quality time with the physically absent parent can be enjoyed using social media with its many forms. Lockdown does not mean lockout between children and parents.”