Related Post

Parents with Mental illnesses in child custody and care matters in South Africa

Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to mention a few. Mothers automatically have parental responsibilities and rights of care, contact and guardianship, and fathers may either have it or acquire it. This depends on the facts of the case. The obligation to maintain your child however always applies.

Various factors are looked at when deciding what is best for a child

Having said the above, how parents exercise their parental responsibilities and rights would differ from case to case, especially if the parents are not living together. In such a case, various factors and circumstances will be looked at in determining what is best for the child. As would be seen later, in the case of a dispute in relation to how separated and divorced parents should exercise care and contact, expert advice needs to be considered. What this article deals with is how to resolve the issue of parental responsibilities and rights of care and contact when it comes to a parent having a mental illness or disease.

The child’s best interests in all matters concerning a child

We all want what is best for our children. That includes for them being cared for in the best possible way, either by you as a parent, or the other parent if that is best. Having parents who are mentally sound as caregivers are, therefore, an important aspect when it comes to raising a child. Logical and rational caring would take place under the circumstances. Parents would, therefore, communicate in a sensible way with the goal of caring for the child in the best possible way.

Mental illness in a parenting situation

If a couple lives together, and one of them has a mental illness, the other parent would be in a good position to care for the children and the other ill parent. However, problems arise when the parents are separated or no longer living together. The question is what happens to the child if one of the parents are mentally ill or have a mental disease or disorder? It must be stated that not all mental illnesses and diseases warrant consideration when it comes to the issue of care and contact in relation to minor children. If the mental illness or disease is adequately treated through medication and therapy, then it may not be a factor when it comes to parent’s parental responsibilities and rights of care and contact.

Types of mental illnesses and disorders

There are various types of mental illness and diseases. Some of the main groups of mental disorders are:
  • mood disorders (such as depression or bipolar disorder)
  • anxiety disorders
  • personality disorders
  • psychotic disorders (such as schizophrenia)
  • eating disorders
  • trauma-related disorders (such as post-traumatic stress disorder)
  • substance abuse disorders
Examples of signs and symptoms include:
  • Feeling sad or down
  • Confused thinking or reduced ability to concentrate
  • Excessive fears or worries, or extreme feelings of guilt
  • Extreme mood changes of highs and lows
  • Withdrawal from friends and activities
  • Significant tiredness, low energy or problems sleeping
  • Detachment from reality (delusions), paranoia or hallucinations
  • Inability to cope with daily problems or stress
  • Trouble understanding and relating to situations and to people
  • Problems with alcohol or drug use
  • Major changes in eating habits
  • Sex drive changes
  • Excessive anger, hostility or violence
  • Suicidal thinking
  If any of the above-mentioned mental disorders and symptoms thereof would detrimentally affect a parent’s capability to care for a child; then it needs to be considered in a child custody matter. It could, therefore, happen that one parent who had custody over a child, loses it, due to developing or acquiring a mental illness.

How mental illness and diseases may manifest itself in child care and parenting situation

It may be that people with mental illnesses live normal lives as single individuals without any children. They would go to work, partake in sport, and socialize as any other person would. However, when children come into the picture, their mental illness could cause the following to occur:
  • The minor children are not cared for due to one parent having an obsessive-compulsive disorder of always washing his or her hands. They are therefore not fed on time, bathed nor care for properly;
  • A parent is violent and abusive towards the children. He may get angry very fast and act violently;
  • The parent is on strong medication which causes the parent to want to sleep all the time. The minor children are therefore not cared for at all and left to their own devices;
  • The parent lost all form of rationality and makes illogical decisions when it comes to the minor children, placing them in danger. For example, the parent may decide to take the minor children to walk with him or her to the shop late at night when it is dangerous to do so; and
  • The parent may suffer from hallucinations and live in a fantasy world. He or she may be guided on how to parent the minor children from “spirits” who visits and communicates with her.

Diagnoses of mental illness in a parent

It often happens that before a couple has a child, there are no apparent signs of mental illness. It may even happen that the parents of one of the parties knows of some underlying mental illness, but does not want to disclose it to the new person in their child’s life. In other cases, it is well known to all that there is a diagnosis of mental illness which is under control through medication, therapy and so on. And then there is the case where the person with the apparent mental illness does not want to seek any help or is in denial.

What happens after the child is born where one parent has a mental illness?

We are not medical doctors, psychologists, nor psychiatrists. However, in our experience, we noticed, in many of the cases we dealt with, that once a couple has a child, the mother’s medical illness surfaces, or becomes worse. The same may apply to the father. This observation could be because those types of matters make it to our office and should therefore not be a general assumption. However, be that as it may, if one parent has a medical illness that could affect her parenting skills, that needs to be looked at. This is so, even though it is not the parent’s fault that he or she has a mental illness. Now the best-case scenario would be for both parents to remain together if one has a mental disorder when there is a child involved. In that way, the child would be raised with both parents in his or her life and they can work as a team. Depending on the symptoms of the medical disorder, the family can live a balanced and fruitful life.

What happens to the child if the parents separate or divorces?

This is where the issues arise. Should the parents’ divorce or separate, the parties would have to decide who is best suited to care for the minor child or children. If the parent with the mental disorder was the primary caregiver of the minor child since birth, it would be hard to consider a change in primary caregiving. The parent with the mental illness may feel that it would be best that he or she care for the child, despite his or her mental condition. This is where things become very complicated and challenging. On the one hand, you have a parent who always cared for the child, but now has a mental illness, and want to retain primary care. On the other hand, you have a parent who was never the primary caregiver but now wants primary care due to the other parent’s mental condition.

Factors to be considered by the court and experts

Various factors come into play. For example, the age of the children, in whose home they will be living in, and also the mental condition itself. For example, if the child is 16 years old, and the mother has a serious mental illness, for the past 10 years, it would make little sense to change the primary residence of the minor child on that factor alone. By now the child would have learned to care for himself with the assistance the mother provided under the circumstances. On the other hand, if the child is 6 years old, and the mother cannot even take care of herself, then under those circumstances, it may be a good idea if the father primarily cares for the child after separation.

How does one resolve the issue of primary care if one of the parents have a mental condition?

Seeing that the condition is a medical one, mental health care experts need to get on board. An assessment would have to be made as to whether or not the child can be cared for by the relevant parent notwithstanding his or her mental condition. If there is no documentary proof, and such is required for court; the problem that one may encounter is that of doctor-patient confidentiality. This may not always be the case. But especially so if the parents were not married or living together. Usually, medical aid statements would give a timeline of the condition and its treatment. This would apply if the parent with the condition is on the other parent’s medical aid. If the medical practitioner is willing to give a report on the patient’s medical condition, and the inability to care for the minor child; things should be easier to resolve. However, if no such report or diagnosis is forthcoming, then things would be a bit more challenging. Either way, even if you have the report confirming the medical condition, and the issue is not resolved, then the court needs to be approached.

Approaching the court in a child custody matter where one parent has a mental illness

Not all cases of mental illness warrant a child being removed from the care of the primary caregiver. Each case is different and it depends on the facts of each one. However, should the mother had primary care, and she refuses to have the minor child reside with the father due to her mental condition, the court, unfortunately, have to be approached. If the father, in this case, has proof that the mother is mentally unsound and unable to care for the minor child, then the court would have to consider such evidence. This could be a report from the treating doctor or some medical records. The court may however not be in a position to decide how contact and care arrangements should be exercised. For this, the court may want the Office of the Family Advocate or a private social worker or psychologist to conduct an investigation and provide a report in the matter. Once the court has the expert report and heard from both parents concerned, would the court be in a favourable position to rule on what is best for the minor child? It does not mean that because the mother has a mental illness that she should not remain the primary caregiver. As outlined above, various factors would need to be considered. Especially the impact the mental illness would have on her caring ability towards the minor child. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws      
Posted on by Telelaw

Relocation of minor children with a parent. What does the Courts and Family Advocate look at?

Relocating with your minor child where the consent of the other parent is provided is ideal. If consent is not provided, then the Court would need to get involved. This applies to both local (example, provincial relocation) and international (moving abroad). Our High Court often hear applications for relocation of minor children. Sometimes the issues are simple, and other times, less so. However, the ultimate question is whether or not it is in the minor child’s best interest.

High Court getting involved in minor children relocation matters

In the unreported judgment of CG v NG 2015 JDR 0391 (GJ), the Applicant, being the mother, approached the Gauteng High Court for permission to relocate with her minor children from Gauteng to Cape Town. We shall not deal with the history and all the facts of the matter, save for the important principles applied to the relevant facts. In this matter, the Office of the Family Advocate was called upon to provide a report as to the intended relocation. This they did and which the Court considered. That is illustrated in the judgment below.

Extracts of a Judgemnet of the High Court in a Relocation of minor children matter

The following aspects of the judgement would be of benefit:
[22] The ruling on the postponement leaves this court to deal with the only remaining issue between the parties and that is whether or not the Applicant should relocate to Cape Town with the minor children. The law on matters of relocation is clear. The relocation must be in the best interest of the minor children as is prescribed in the Children’s Act No. 38of 2005. In addition, an applicant in the position of the Applicant is at liberty to relocate with minor children provided his or her intention is bona fide and reasonable. The test applies to both relocation within the borders of South Africa and abroad. See Jackson v Jackson 2002 SA 303 (SCA) and B v M 2006 (9) BCLR 1034 (W) to which Counsel for the Applicant referred this court. [23] Accordingly, the following two questions arise: 23.1 Is the proposed relocation in the best interest of the minor children? 23.2 Is the Applicant’s intended move bona fide and reasonable? [24] Whether or not an applicant’s proposed move is bona fide and reasonable should be a factual enquiry. Needless to state therefore that each case must be assessed on its own merits. The Applicant has been living in Johannesburg, xxx, while married to the Respondent and to date she continues to do so. [25] Her relationship with the Respondent has become estranged a result of which she now holds the view that it will benefit her to be next to her family, mother, father brother and sister-in-law all of whom are in the area of Cape Town, xxx. [26] Her family will give her the emotional support that she cannot get in Johannesburg. Furthermore, once the minor children are settled, her mother will give her support by fetching them from school such that she could start looking for employment. [27] As the primary custodian parent of the minor children, her move to Cape Town will of necessity be in their best interest. She does not see herself being separated from them as that will prejudice her relationship with them. Her proposed move to Cape Town is supported by her psychologists, Ms Becker and, Ms Chelvers. [28] The Applicant asserts further that the Respondent whom she describes as ‘exceedingly wealthy’ can still exercise his rights as per the orders of Van Oosten and Victor JJ. She does not foresee any problems whether financially or otherwise for The Respondent to fly to Cape Town to see the children as he does presently in Johannesburg. [29] In response to the Applicant’s averments, the respondent alleges that it will not be possible for him to travel to Cape Town on a weekly or monthly basis as this will necessarily involve increased costs for him. Moreover, it will take him away from his only source of income, his work. [30] The relocation of the minor children means that he will have to seek accommodation in Cape Town, transport and time off work in order to exercise his rights. His ability to generate income will be immensely impaired and that could have devastating repercussions for both the minor children and the Applicant especially as she is unemployed and fully dependent on the monthly maintenance that he pays. [31] The Family Advocate unequivocally recommends that the status quo be maintained because to move the minor children to Cape Town will reverse the stability that has prevailed since the introduction of the increased access by their father. The Applicant herself has agreed that all three minor children like their father and that they cannot wait to visit him. The Family Advocate also alludes to the fact that Gabriel, the eldest of the minor children appears settled with her friends at school. [32] Moving them to Cape Town under these circumstances could upset their routine and bring unnecessary shock to their lives at the time when they are beginning to settle. The Family Advocate is an expert in these kind of matters and he undoubtedly compiled the report with the best interest of the minor children in mind. This court has no reason to doubt the outcome and accordingly adopts it. [33] In the result, the following order is made:
  1. The application is dismissed;
  2. The Applicant is ordered to pay the costs as between attorney and client.
From the above it is clear that the Court looked at various factors, as well as the report of the Office of the Family Advocate.      

Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!