Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

Divorce Alienation

Are you a divorced parent that lives a distance away from your children? Are you a divorce parent that travels out of town frequently for their work? Is your parenting time supervised? Are you a divorce parent that would simply like to communicate with your children more regularly?

Regardless of the reason, when one parent is separated from a child, it can cause a great disruption in their young lives. Children do not always understand why one parent must relocate or why on parent must have supervised visits. What they remember is that one of their parent's is no longer there. With the creation of the Internet and expanding technology, parents in these situations may now be afforded innovative and creative opportunities to remain a larger part of their children's lives. This is often called "Virtual Visitation," "Virtual Parent-Time", "Internet Visitation", and "Computer Visitation." All of these terms refer to connecting with children over the Internet. It can refer to e-mail contact, instant messaging programs, or video and voice conferencing.

Certainly, connecting with your child through a computer does not replace personal contact. However, it serves as an effective bridge for parents when frequent personal contact is not possible. With regard to supervised visits, it also serves as a safe medium where contact can be innocuously monitored if necessary. Although virtual visitation has not yet been widely embraced by Courts or Judges, it is coming.

The benefits of Computerized parenting time are numerous. First, and perhaps foremost, computer visitation may reduce the psychological impact of separation on a child. Most psychologists will tell you that children often blame themselves when one parent is absent from the family unit. They experience significant separation anxiety and may even internalize that anxiety as guilt or feelings of abandonment. These children often experience serious behavioural problems that can haunt them throughout their childhood.

There are many types of virtual visitation. Any form is possible so long as the technology is reasonably affordable to the parties. Forms of virtual visitation include:

• E-Mail. E-mail is the oldest and, perhaps most common form of computerized communication. What it lacks, however, is the real time interaction with a child.

• Instant Message Programs. A form of real time interaction includes instant message programs. These programs function like a chat room allowing each party to type messages to the other that can be seen as soon as the message is posted in real time. The benefit of these programs is that they can alert a person when another participant is online. It has the potential to allow parents to spontaneously communicate with their children in addition to having regularly scheduled contact. The drawback instant message programs is that they may limit contact to those children that are old enough to spell and type messages. Common instant message programs include Yahoo Instant Messenger, AOL Instant Messenger, MSN Instant Messenger, ICQ to name only a few.

• Personal Video Conferencing or a Video Calls. Many of the instant message programs previously mentioned are currently integrating video conferencing and voice conferencing into their programs. This means that two people in two different locations may communicate in real time by voice and video. This type of virtual visitation does require additional equipment, however, including a high-speed connection (like DSL or a Cable Modem), a webcam, a headset. a microphone, and the proper software. Once these are in place, you are able to have a completely interactive video phone call where you can SEE as well as hear each other with real video that is clear crisp and audio that is as good as a telephone call.

Video calls allow parents to interact with their children in many ways that are preferable to the other methods. By video conference, a parent can see the subtle changes in their children as they grow. They can see their expressions and their emotions. Through video conferencing a parent may even assist their children with their homework, play games or appreciate their latest art project.

If you decide to include 'Virtual Visitation' as a part of your parenting time order or if you re seeking an order of the court imposing that obligation divorce, you may wish to include language that is specific and identifies:

1. The precise form(s) of 'Virtual Visitation' that you will use even including the program (video conference, email, Video Mail, Yahoo Instant Messaging, MSN Instant Messaging, etc.)

2. The equipment necessary including both hardware and software and the type of Internet connection.

3. Who pays for the Internet service or equipment? If you believe there may be an objection to the cost you may consider offering to purchase the equipment yourself for the other parent's use.

4. The Schedule for the virtual visitation including the specific days of the week and times of day. If equipment malfunctions or breaks, what time period is allowed for computer repair before court sanctions are triggered?

AUTHOR: Maury D. Beaulier

Compiled by http://www.divorceattorney.co.za

Section 21 of the Children's Act deals with the right of contact of unmarried fathers.

The right of contact, also known as "access", is defined in section 1(1) of the Act and means:

i. maintaining a personal relationship with the child; and... See More... See More

ii. if the child lives with someone else -

a. communication on a regular basis with the child in person including visiting the child or being visited by the child; or

b. communicating on a regular basis with the child in any other manner including through the post or by telephone or any other form of electronic communication.

Section 18 provides that a person may have either full or specific parental rights and responsibilities in respect of a child. Furthermore, the parental rights and responsibilities a person may have in respect of the child include the responsibility and the right to maintain contact with the child.

In terms of section 21 an unmarried father now has full parental rights and responsibilities in respect of a child born out of wedlock if -

i. at the time of the child's birth he is living with the mother in a permanent life-partnership; or

ii. he, regardless of whether he has lived or is living with the mother,

a. consents to be identified or successfully applies in terms of section 26 (which is not in operation yet) to be identified as the child's father or pays damages in terms of customary law;

b. contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and

c. contributes or has attempted to contribute in good faith to contribute towards expenses in connection with the maintenance to the child for a reasonable period.

In essence section 21 means that an unmarried father has the right of contact to his child if the conditions listed above are met.

If the mother and unmarried father dispute whether or not the above criterion has been fulfilled, the matter has to be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. If either the mother or the unmarried father are dissatisfied with the outcome of the mediation, it can be referred to court for review.

If the unmarried father does not have a right of contact in terms of section 21 or in terms of a court order, he may still be able to acquire a right of contact in terms of an agreement with the mother. The agreement must be in the prescribed format and contain the prescribed particulars. Also, the agreement must be registered with the family advocate or made an order of the High Court or the children's court on application by the parties to the agreement.

Any Magistrate's court is a children's court and will have jurisdiction to hear the matter if the child involved is ordinarily a resident within the area of the court. If more than one child is involved in the matter, the court of the area in which any of those children are ordinarily resident will have jurisdiction.

The family advocate or court will have to be satisfied that the agreement is in the best interests of the child. This requirement is in line with the Constitution which expressly provides that the interests of the child are of paramount importance. When giving effect to the best interests of the child standard, the court will consider:

• the nature of the relationship between the child and the parent;
• the attitude of the parent towards the child and
• towards the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the parent to provide for the needs of the child;
• the likely effect on the child of any separation from either parent; and
• the need of a child to maintain a connection with his or her family.

This list is not exhaustive and other factors may be relevant depending on the circumstances. For the above considerations, a "parent" includes any person who has parental responsibilities and rights in respect of a child.

Compiled by KWJ Inc. Family and Divorce Law Attorneys, visit us at http://www.divorceattorney.co.za

Access to children

A divorced parent who has not been awarded custody of his child has a right - and obligation - to see the child regularly. Unfortunately, this so-called right of access to the children of a broken marriage frequently results in disputes, usually as an extension of the matrimonial quarrel.

Often our courts will simply stipulate that the parent who is not awarded custody should have 'reasonable access' to the children, leaving the timing and arrangements to the estranged couple. But even when the court makes no mention of access, the non-custodian parent is fully entitled to expect reasonable access to his or her children.

If there is likely to be a dispute, however, a parent should attempt to have his or her rights set out clearly. This can be done by setting out specific arrangements in a consent paper, which will become an order of court when the divorce is granted. In any event, it is better to set out the arrangements in writing once the parties have reached agreement on access to the children, in order to prevent further disputes as far as possible.

If there is no specific agreement, the parent who has custody of the children has the right to determine what access the other may have. However, he or she may not lay down unreasonable rules. The amount of access will depend on the circumstances of each case. For instance, where parents live within a few kilometers of each other and the children attend a day school, access might be for one day each weekend or at specified times during the week. If the parents stay far apart, the children could, for example, stay with the non-custodian parent for two weekends every month.

The court may well order the parents to take it in turns to have the children on public and religious holidays and to share school holidays where appropriate. Special arrangements should also be made for access on important occasions such as birthdays.

Unless there is good reason for limiting a parent's rights of access, that parent is entitled to take the children away from the other parent's supervision while he or she is exercising his or her right of access. If, for example, the father has the right to spend one day of each weekend in the company of his children, he is entitled to take them away from their mother's home - provided he returns them to her at a reasonable hour.

REFUSING ACCESS

A parent can be refused access to a child only if he or she is likely to harm the child's development seriously. A habitual drunkard, for example, may be barred from seeing his or her children, or may be allowed to see them only in the presence of someone else.

Similarly, a person convicted of sexual offences against children, or of gross violence, will not be allowed to see them without safeguards, and may even be refused all access.

The fact that a child does not want to see the non-custodian parent is not a sufficient reason for refusing access to that parent. An attempt by either parent to alienate the child's affection from the other parent or to undermine his or her authority is a good reason to apply for a variation of the court order.

CHANGING AN ORDER

No court order need be regarded as permanent. A parent who considers an order to be wrong or unfair has the right to appeal. Furthermore, significant changes in the circumstances of either parent may be a good reason for applying to the court to vary its original custody order. A child-custody order normally continues until the child reaches the age of 18.

INTERDICT

Where there is a danger that one parent may try to take the child out of the country, the court can be asked for an interdict - an order restraining that parent from carrying out his or her suspected intention. A parent wishing to apply for an interdict should approach an attorney. An interdict can be obtained at short notice and if the matter is sufficiently urgent, a judge can be requested at any hour of the day or night to grant the order.

Source: You and your rights

Compiled by: KWJ Inc. Family and Divorce Law Specialists - Cape Town: http://www.divorceattorney.co.za

Divorce Online Fast, Cheap and Without Hassle

Attempts to use the worldwide Web as an effective means of struggle against bureaucracy are undertaken constantly and sometimes successfully. Today it is possible to fill in a tax return, draft a Will or Family Trust or to receive a legal consultation. And lately there are sites offering online divorce services, like eDivorce South Africa's premier online DIY divorce platform and the good news is that you can get divorced at a fraction of the normal cost.

It is usually easier to marry than to divorce, especially if the spouses who wish to do so must divide their common property as well.

Why should we lose the money and time applying for divorce, if there is the cheap and fast alternative - divorce online through eDivorce. You find the site, take your mouse, you press on the button - and start the process.

The high cost of lawyers has not forced people to refuse divorce. The deep reasons for divorce lie in the emotional - sensual sphere. The most painful and unpleasant situation is dialogue with a third party hired to engage in and bear your personal problems in general divorce discussion.

The eDivorce process has Two Divorce Plans from which you can choose:

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• All your divorce forms - completed for you by the eDivorce platform and checked by divorce experts

• Step-by-Step Guide -Written in plain English and easy to follow

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The Gold Plan - Managed Divorce Service - R 6 000 all inclusive

We will not charge you by the hour or minute to deal with your divorce. The price you pay is fixed from the start of your case and includes everything you will need.

Why choose our Gold Plan Managed Divorce Service?

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What are the grounds for divorce in South Africa?

There are only two grounds for divorce:

• Irretrievable breakdown; and

• Mental illness or continuous unconsciousness.

Irretrievable breakdown

The court may grant a divorce on the ground of the irretrievable breakdown of the marriage. The cause of breakdown is immaterial but legislative guidelines have been put in place to assist a court in determining a prima facie case for divorce.

Some of the circumstances which the court may accept in order to prove irretrievable breakdown are:

1.      that the parties have not lived together as husband and wife for a continuous period of at least one year;

2.      that the defendant has committed adultery or that the plaintiff finds it irreconcilable with a continuous marriage relationship; or

3.      the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing impeachment.

These are not the only proof of marriage breakdown. Thus, for example, the court may find that refusal of marital privileges, mental and physical cruelty, drug abuse, alcohol abuse, incompatibility, the plaintiff's own adultery or even unilateral repudiation, constitutes sufficient evidence of breakdown.

Mental illness or continuous unconsciousness

Section 5 of the divorce Act empowers the court to grant a divorce on the ground of mental illness or continuous unconsciousness. The cause of action runs on the ground of "supervening inaccessibility of recovery".

Mental illness

The defendant has been admitted to an institution as a mental patient in term of an inception order under the Mental Health Act and is being detained as a President's patient, or a mentally ill convicted prisoner in an institution or prison hospital, and He has been unconditionally discharged from the respective institution or place of detention for a continuous period of at least two years prior to the institution of the divorce action, and On the evidence of at least two psychiatrists appointed by the court, the defendant is mentally ill or there is no reasonable prospect of his recovery.

Unconsciousness

The defendant is unconscious by reason of a physical disorder and the defendant's unconsciousness has lasted for a continuous period of at least 6 months.

In general a Court has no discretion to deny a divorce where the irretrievable breakdown of the marriage has been has been proved.

In our next article we will discuss the consequences of a divorce.

Compiled by http://www.edivorce.co.za South Africa's Number 1 Online Divorce Service