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When children become unwitting weapons in the battle between the exes

The only winners in high-conflict divorces are the attorneys and advocates.

Reprinted from the Daily Maverick, by Michael Collins – 2021-03-02

First published in the Daily Maverick 168 weekly newspaper.

When my ex-partner, the mother of our two children, both younger than 10, drove out the gates with the children seven years ago, things were amicable between us. I helped move large items to the house her father had bought her 15 minutes away; she emailed me for comfort; and we checked in on each other.

I had no idea I was looking at a seven-year journey of lost work and vexatious litigation aimed at denying the primary-parenting relationship between my daughter and myself, and obstructing the strong bond I had with my son.

Separating or divorcing with children involved can bring out the worst in people, resulting in the weaponisation of children against the other parent. After five long years of fighting for access to my daughter and trying to agree on a fair monthly maintenance in every court you may have heard of – children’s, maintenance, regional and the high court – I was financially and emotionally wiped out.

Investments and assets intended for a family future and our children’s education were depleted as she relentlessly obstructed my weekly contact with my children. We couldn’t afford a private school but luckily lived in a city with good government schools – yet I was forced into paying private school fees until my funds eventually ran out.

It gets worse, but I will spare you the details. Suffice it to say I had ignored the warning signs – the same scenario had played out between my former partner and her previous husband. Instead, I’ll share my thoughts on how to avoid such a situation.

Best interest

If you (and your kids) are fortunate, you and your ex-partner are both mature adults and want what is best for your children. But if you or your ex-spouse have unresolved emotional issues and can’t separate them from what may be in the best interest of your children, then a world of financial and emotional hurt lurks around the next litigious corner.

Parenting plan

All that is required when divorcing is an accredited mediator or private social worker to draw up a parenting plan agreement. Once signed, it is submitted to the office of the Family Advocate (for which there is no charge), who registers the parenting plan and has it endorsed at the children’s court.

Maree Jagga of Family Focused Law and Mediation (FFLM), which assists alienated parents, says a parenting plan can cost “from R4,000 to R15,000, bearing in mind that mediators can cost between R850 and R1,500 an hour”.

Those without financial constraints can get an attorney to draw up the papers.

Ethical professionals

Abusive men are known to use financial power or physical and emotional violence against spouses if they feel aggrieved or cheated. On the other hand, women who wish to bully or take revenge on their spouse, and who have financial resources available, will often weaponise the children, a form of gender-based violence in which children are alienated from their father. Of course, this can be done from either side and is not behaviour restricted to mothers.

Defending yourself against such tactics legally is expensive when poor legal strategies are applied. It is crucial that good and ethical professionals are engaged.

Cost of getting it wrong

By the time I got to the high court in 2018, a journey that took four years, I had – naively in retrospect – given up on attorneys.

My first attorney, a former magistrate, was never available on weekends, which is when my ex would typically obstruct my contact with my children. Yet the bills I received from the attorney included fees for her receptionist answering phone calls.

A family law attorney, who prefers to remain anonymous as Lawyer A, says some attorneys do spend much of their time in court. “However, not all divorce matters need to be nasty and expensive and not all attorneys view clients as cash cows.”

The attorney you choose could be the most important decision of your life, and those of your children. I chose badly.

I was paying for an attorney, a psychologist and a mediator as well as spending weekly chunks on trying to undo the obstructions. I had lost my work and main source of income. In my two years with this attorney, I accumulated almost R200,000 in legal fees, and achieved nothing for my children or myself.

Billable hours

Frustrated, I went to a prominent family law firm in Cape Town, convinced that with greater resources they would be able to assist. Over the course of another year, huge lever-arch files of back and forth from attorneys were produced – plus a bill for another R200,000.

Lawyer A says that this “back and forth” is accepted practice, with some firms even charging out secretarial services.

A forensic accountant told me that the same prominent firm I had hired was notorious for drawing out cases, in the process allowing them to make more calls, write more emails and have more consultations, growing their billable hours.

By lawyers, for lawyers

Family law almost seems structured to encourage litigation, with the result that clients, often desperate parents, end up spending excessive amounts on attorneys, advocates, psychologists, specialist psychologists, social workers, mediators and facilitators.

This is in stark contrast to the positive wording and intention of the Children’s Act, which many feel is the obvious route to go when separations involve children. Yet the Act requires quick resolution, in the interest of the children. It doesn’t make provision for drawn-out cases and unnecessary billable hours.

Psychologist reports

When mediation fails to find common ground on a parenting plan, or when accusations about fitness-to-parent are made, the mediator – ours was a former advocate who charged R1,500 an hour – will suggest that the next option is to have an appropriate psychologist compile a parenting assessment.

At the start of this saga, my former partner selected one of three names offered, a respected child psychologist and author. After four months of weekly assessment sessions that cost close to R30,000 between us, he dismissed the mother’s claims regarding my parenting fitness. Her parenting was found to be “hostile”.

Finally, after almost two years of my daughter not being allowed to be part of my own family unit with her brother, I thought the battle was over.

Hired gun

Instead, my former partner opted for a course that put our children through another five years of emotional trauma and assessments. She dispensed with the services of our local attorney and found another attorney in another city far away.

He took a year to commission another psychologist to dispute the original psychologist’s finding. She willingly paid for these services. Not having a jointly appointed expert implied that this could be a “hired gun”, an attorney shopping for an opinion more favourable than the original.

This psychologist indeed produced the desired report, in contrast to the original produced 18 months before. This meant more money had to be spent on a “joint minute”, in which the two psychologists met to iron out their differences. The costs of this meeting, with flights, ran into many thousands.

Ultimately, the court ordered that a facilitator be appointed. In theory, this individual would ensure that neither party stepped out of line. It sounded cheaper, with a hint of hope in the background.

Directives

The first facilitator effectively gave my former partner a year’s grace before strongly recommending that she comply with a directive, which was based on the recommendation of yet another psychologist. But my former partner called psychologist number three biased, as she had said of psychologist number one, and, through her attorney, asked the facilitator to resign.

The second facilitator, a woman, also gave my former partner a year’s “behaviour” grace, before again requesting that she comply with a directive giving me time with our daughter alone.

My former partner’s lawyer threatened the facilitator with litigation. She resigned. A facilitator is toothless when faced with an aggressive and wealthy litigant.

This played out over a period of two years, during which time my dream of unsupervised contact with my daughter was not realised and our relationship was throttled, a cost far more significant than the money spent.

Outcomes

I eventually achieved my unrestricted access at our first high court appearance. But then the judge allowed my former partner to relocate to another city. When I moved there, she relocated again – this time overseas.

Her second relocation application papers spoke of her spending R3-million in what were efforts to remove me from our children’s lives. By the time she relocated, the fee would’ve been closer to R4-million.

I no longer had financial resources to school the children alone, and hence stop the move. I had been outspent by my former partner’s access to deep family pockets.

Relocation

In acrimonious relationships, moving countries can be seen as the ultimate weapon in severing the bond between children and their other parents.

Jagga says she has deep experience with difficult relocations, and offers a warning: “Parents escaping overseas with fraudulent documentation or even with a court order often vanish, leaving the co-parent at home in South Africa facing heartache and significant legal costs to either find them, or mirror parenting agreements in the relevant countries of relocation.”

In my case the relocation, albeit bullied at a mediating table with an expensive yet ineffective mediator, was legal but no less heart-breaking.

Access

“Divorce can cost anywhere from very little to a hell of a lot of money”, says Lawyer A.

My decision to spend all I had on maintaining access to our children was financially irrational and psychologically stressful but, I believe, emotionally on point.

I felt I could not abandon my children to what I knew was an alienating parent. The fact that our first child psychologist had found my ex to be a hostile co-parent, and warned of the impending damage to my primary parent relationship with my daughter, had made me doubly determined to fight it.

My former partner found the right attorney, played the system and “won”. The children lost the guidance, daily affection, and support of their daily dad. I am now able to see them just once a year, with any hope of effectively parenting them now lost. With all savings depleted, flying over to see them will require good and secure work at a challenging middle age.

As a psychologist said to me, “Few couples will tell you, after spending years and blowing fortunes, that the gain justified the expense, and that they feel anything other than still frustrated, exhausted, traumatised and disillusioned.”

It doesn’t have to be that way. DM168

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Simon Dippenaar & Associates Inc., is a Cape Town law firm, of specialised divorce lawyers. We offer divorce legal services focusing on a mediation-first approach. We represent our clients with a sense of uncompromising dignity. We focus on fairness, putting the family first, while always remaining sensitive. Contact us  on 086 099 5146 or email Simon at sdippenaar@sdlaw.co.za.

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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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