Academic Ecstatic About Daughter’s Achievement

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UKZN’s Physiotherapy senior lecturer, Dr Sonill Maharaj, is overjoyed after his daughter, Vianka graduated with a Bachelor of Law Degree and obtained a merit certificate for her undergraduate research project.

Supervised by Ms Janine Hicks, Vianka conducted a review of child custody decisions following divorce proceedings to determine whether courts are gender biased. She noted that the Convention on the Rights of the Child, which aims to ensure that both parents have common responsibilities for the upbringing of their children, is questionable.

Her research showed that despite the increased recognition of the beneficial role fathers can play in the lives of their children by allowing automatic parental responsibilities and rights, the new Children’s Act ‘has retained the status quo to the extent that it still does not confer automatic, inherent parental rights on biological fathers as it does with mothers.’

After reviewing a few cases in the awarding of custody, against existing legal framework, she noted that almost all rulings were made in favour of the mother as the primary caregiver.

According to Vianka, one needs to question whether the unfair treatment regarding allocation of parental responsibilities and rights to fathers, can be justified in view of international trends, which emphasise the important role of both parents in the upbringing of their child.

‘The biological father supposedly has rights under the law, but realistically only a few rights are implemented. This is evident in the cases that I reviewed and researched, where the mother was given custodial rights over the father, despite overwhelming evidence in some cases that the father proved to be a better caregiver,’ she explained.

She said if courts are still perceived to be biased and the mothers get custody, fathers can challenge these decisions. If they have a nurturing, loving relationship with their child and feel that they have been discriminated against by the courts, on the basis of gender they can consider the following factors to guide them in their legal battle.

They must ensure that they are financially secure, as a custody battle can be financially exhausting. Fathers should prepare all necessary documentation regarding visitation schedules and maintenance payments prior to court hearings and remain calm during courtroom procedures as outbursts and signs of anger can adversely affect the case.

‘Since the court always considers the best interests of the child, a father seeking custody should have solid proof explaining why sharing custody with the mother will not be in the best interests of the child,’ she said.

Vianka said they could seek the expertise of the Family Advocate who will promote and protect the best interests of the child in parental responsibilities and rights disputes.

‘Judges are leaders of the judicial system thus playing a key role in eliminating bias. There should be a guide to assist judges, attorneys and court staff in creating a bias free environment that promotes fairness and diversity in the court’s system, thus fostering a justice system that enables gender equality and non- discrimination when awarding child custody,’ Vianka said.

Words: Nombuso Dlamini 

Photograph: Supplied