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Mental instability & fitness for parenting
"Is my spouse too mentally unstable to look after our child?"
This question is raised time and time again in divorce matters. One party will allege that he or she should be given care of the child / children due to a spouse being mentally unstable.
Drugs & alcohol abuse
One of the most common forms of a spouse being proven to be unfit to have care of a child is when there is serious abuse of alcohol or drugs. This can usually be proven quite easily by way of evidence. A history of being admitted in and out of rehabilitation centres is one of the ways of proving a history of substance abuse. Sometimes drug and alcohol abuse lead to criminal convictions too, e.g. being arrested for drug possession or drunken driving.
Clinical psychologist's report
However it is more difficult usually to prove that somebody is mentally unfit to have care of a child when there is no abuse of alcohol or drugs. Usually the best way to prove that somebody is mentally unfit would be by means of a proper report by a clinical psychologist who is qualified in this field. One is entitled to request this in a divorce matter when you believe your spouse is unfit.
The clinical psychologist would normally have a few sessions with the client. People often suffer from severe emotional trauma when there is a divorce, sometimes more so when they are separated from their spouse and are left with a loss of family stability or financial stability.
The clinical psychologist would also request a meeting with the children and the client together. It would be evident then exactly if and what is lacking in the relationship between the parents and children. Sometimes due to the lack of routine and discipline in the household due to the emotional trauma suffered by a parent due to the divorce the psychologist may recommend long term therapy for the parent. Children growing up in a home with an emotionally unstable parent sometimes grow up with psychological problems.
In one of my matters I was acting for the man. There had been a breakup and the four children were all living with his soon-to-be ex-wife. The man had beenevicted from the matrimonial home. The lady was according to my instructions continually shouting at the children. There was a domestic worker there too who claimed that the children were always left with her while she was out with her new boyfriend.
The situation got so bad that I advised my client to call the social services in. The social services were shocked after investigating the matter. They got to the house and heard the mother shouting at the children and insisted the matter be referred to a clinical psychologist. The clinical psychologist eventually concluded that the mother was too mentally unstable to look after the children.
The children should always come first in a divorce matter. Their best interests should be taken into account. If there is the slightest sign that a parent is mentally unstable, the matter should be pointed out to the authorities. A mentally unstable parent may be unfit to look after children.
-------------------------------------------------Family, Estate & notarial legal services
Other divorce-related issues
At the beginning
Should I advise my spouse of the impending divorce action?
Should you move out of the matrimonial house prior to divorce?
Remove your spouse as a beneficiary on your Life assurance.
Check your lawyer's credentials with the Legal Practice Council
Divorce rule 43 for maintenance prior to divorce & divorce costs
Psychological issues
Marriage counselling to avoid divorce
Psychological impact of divorce on children
Child custody when a parent is mentally unstable.
Child-related divorce matters
Mediation to resolve child custody and maintenance issues
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Using Rule 43 to apply for interim custody entitlement
Child custody when a parent is mentally unstable.
Custody when there's been drug use.Child custody for the father
Custody granted to unmarried father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child custody post divorce
Application to terminate your ex's parental rights
Splitting up siblings post divorce
Which parent decides the school to attend?
Child custody on death of a parent
Child custody following the death of a parent.
Guardians appointed by deceased parent.
Adoption of a stepchild
Maintenance for children
Child maintenance to what age?
Maintenance & proof of paternity
Maintenance & custody of adopted children
Maintenance for the unborn child
Divorce & maintenance considerations for a handicapped child
Token or minimal maintenance when parent doesn't work
Impact of inheritance on child maintenance obligations
Maintenance for children over 18
Grandparents' maintenance & care obligations
Children suing for maintenance
Application for maintenance reduction
Arrest after failing to pay maintenance
Maintenance for spouse
Maintenance in a polygamous marriage
Maintenance when your spouse remarries
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-related matters
Mental handicapped children & divorce rates
National register of those unsuited to working with children
Joint decisions with respect to minor children
Joint Guardianship of a child between Domestic worker & Employer, so as to enable the child to attend the local school.
Kidnapping of a child by the other parent.
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Proposed two pot retirement system and impact on divorce settlements.
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life assurance actions you need to take when divorcing
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Divorce documents
Sheriff letter for divorce summons (combined summons)
Sheriff letter for divorce summons
The final order of divorce
Divorce & the particulars of claim
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside