When couples, whether married or not, have children and their relationship breaks down, the children will usually live primarily with one parent while the other one will have access. Access can take different forms and be for different lengths of time depending on the couple’s working hours and the children’s schedule, which primarily depends on school attendance.
To avoid any disputes and to have a clear-cut timetable, it is usually agreed, in a separation contract or as ordered in a court decree, that the visitation time of the other parent takes place on certain days and at certain hours, more commonly known as ‘access’. If a parent reneges on such a contract, or breaches such a decree, by not allowing the other to see the child, then criminal action can be taken against the party at fault.
However, criminal action depends on a report being filed. If the party being denied access to his/her children does not report the matter, then the police will not be able to prosecute. The heartache is that the underlying reason why many do not report such offences to the police is because they do not bother about taking up a criminal action against their former spouse or partner – the only thing that they care about is seeing their children. And they know very well that the police cannot force the other party to abide by the separation contract or by the court decree because it is not within their remit to do so. So, many times, they end up doing nothing.
On the other side of the coin, there is free access. This would be the most ideal kind of access for the children’s best interests because the parent with whom they do not primarily reside can get to see them practically every single day.
But free access is entirely dependent on the amicability, cordiality and goodwill of the relationship between the separated parties. If this kind of relationship does not exist, the concept of free access, ideal and grand as it may be, can be abused by the party with whom the children are primarily residing to the detriment of the other party, usually the father.
Thus, to put some safeguards in place, a minimum number of days are usually fixed as mandatory and anything beyond that can take place with agreement by both parties. This is the ideal situation.
However, liberal access does not mean an automatic guarantee that one will be able to see one’s children every single day because, apart from the mandatory fixed days, the rest are up for agreement and the other party can very well stick to the mandatory days without conceding one extra day.
Is this in the best interests of the children? Unfortunate as it may be, prior to the breakdown of the relationship, the father (and here I am referring to the father because, usually, in such cases it is the father who finds himself in this position), would have been present in the children’s lives every single day. So to go from having contact every single day to seeing each other just twice or thrice a week, is hard – both on the father and, especially, on the children themselves.
Therefore, free access is seen by many as the solution. In an ideal world, and if the parties do keep their relationship as civil and cordial as possible in the best interests of the child, free access is obviously ideal. This is so because the father would be able to see the children every day as is the case with the mother.
When a relationship breaks down, it is extremely hard to keep contact cordial and that is due to the fact that emotions run high and there is hurt, which, sometimes, blurs clear thinking. However, when one denies access, one is not simply harming the other party but mostly the children by denying them a relationship with their father.
Having said that, there are instances when the father disappears for long periods of time, only to reappear occasionally and demand to exercise his right of access. This is also detrimental to the children because a stable relationship with the father does not exist.
Ann Marie Mangion is a lawyer and a published author with a special interest in family and child law.