DE FACTO CUSTODY
I’d been down this road before with Jeremy. Only the first time I didn’t believe that our legal system had evolved enough for me to even think about being granted custody. With Jeremy, my only concern had simply been to make sure that he felt emotionally and physically supported for as long as possible. Which included finding a few new and interesting father-son activities we could experience together. Fortunately, Valeria and I shared a friendly working relationship, and it didn’t take much to accommodate her or her right to access. There was no strategy involved in getting custody of Jeremy. I was only doing what comes naturally to most parents. But I still maintain there was little or no chance of being granted custody if Valeria had simply shown up for her final appointment. However, the courts did consider that Jeremy was settled and doing well in my care. And I was granted custody on the basis that his interest was best served by not having to change environments.
Ten years later, at the start of the new millennium, I found myself in almost the same position and carrying the same concerns. Only this time, I knew Aida was going to be a formidable adversary who’d stop at nothing to defend herself against the fear of losing her parental standing.
Despite Kathy’s invaluable guidance, I simply couldn’t anticipate Aida’s next move or understand why she couldn’t just leave me alone. From my perspective, she appeared to have all that she ever wanted: an accomplished business and life partner; a new asset-strong, debt-free business; a luxurious home they were renovating, extending, and decorating; several luxury vehicles with enough big-boy toys, all parked together in their driveway; a holiday home only an hour’s drive from Cape Town in a sought-after coastal village. Materially, I wasn’t in the same league. I’d sold the townhouse to finance the new business. I no longer owned a home; I didn’t even own a car. But I was perfectly fine using the small panel van that additionally served as our delivery vehicle. I deliberately chose to work from home so that I could be near my children, and also so I was less threatening as competition to Aida. After losing Ellen, I redoubled my efforts to avoid any form of confrontation with Aida. I needed to buy time. Enough time for the family court to determine it wouldn’t be in Samuel’s best interest to change his environment.
She seemed to have it all. But perhaps there was some truth to the stories I’d heard about Martin. I considered she might honestly be unhappy. However, as much as I might have wanted to care, I simply couldn’t afford to be drawn into their relationship. I’d previously been arrested at the gates to their property. So, no matter what Aida may or may not be going through, or how much she seemed to want to provoke me, I needed to stay focused on my objective.
It was my responsibility to deliver and to collect Samuel whenever Aida wanted to see him. I had to ensure that I was never late, and it didn’t help to call to say I might be an extra five minutes – I’d only be screamed at. Yet often, I’d be ignored and kept waiting for half an hour or more. Still, I’d simply bide my time getting to know their Boerboels through the gates, who I’m sure were not meant to befriend me. The Boerboel is a large, strong-boned, mastiff-type dog from South Africa.
I could go on, but I’d rather just list some of the highlights. She fraudulently used my bank account for the purchase of a new vehicle for their business, which I only noticed after she’d already gotten away with three payments. I managed to put an end to the debit order but declined to press charges. While our divorce order clearly stipulated that we were individually responsible for Samuel’s medical bills when he was in our respective homes, I had been listed as responsible for settling his bills. She’d supply them with my correct name and ID number, but just to complicate matters she’d use a bogus address. So, the first I heard about it was after the bill had been handed over to a firm of attorneys. To save my credit record, I was left with no alternative but to settle the bill – together with the attached legal and tracing fees. While I had enjoyed a friendly relationship with Valeria, there was practically no way to communicate with Aida. Sure, I could email or text her, but it was simply ignored. I did try, however, after an unusual amount of Samuel’s clothing seemed to go missing. I texted to ask if she would kindly get her domestic staff or Ellen’s au pair to see what they could find. Perhaps Aida knows me better than I imagined – I’d just gone shopping when she walked in and went straight through to Samuel’s room, where she literately cleaned out his cupboard, including all the new clothes I’d just bought.
It was one thing taking advantage of the situation to abuse me – I understood that I was dealing with an irrational individual – but I suspect that she knew the only way she could really hurt me was through hurting my children.
The de facto custody agreement we signed essentially reversed our access rights to Samuel. Meaning that if Aida wanted to see Samuel, she had the right to have him two nights during the week as well as alternate weekends and school holidays. At first, Samuel was often included for weekends at their holiday home, but no arrangements were made to see him for any school holidays. Unless her parents or other family members were visiting, we simply wouldn’t hear from her. She never saw him during the week, and often returned him within hours on the weekends. We never knew whether Aida was going to see Samuel or not, so we couldn’t make any arrangements of our own. And trying to establish a civil working arrangement was simply not possible. I once made the mistake of emailing Aida. I politely asked if she could just let us know if her plans had changed. Well, my email was just flipped and reversed, accusing me of parental alienation. This made me question if her new attorney had read my email.
I don’t want to go on about this, but I will mention two examples. We seldom spoke to each other, which I found peculiar. But one Friday evening, after I’d specifically let Aida know that I wouldn’t be at home, she left Samuel – who was only a four-year-old toddler at the time – in the dark outside our home. I’d been asked to chair the Friday evening’s meeting of Narcotic Anonymous. Fortunately, I checked my phone as the meeting was about to start. Otherwise, my phone would have been off and I wouldn’t have got the message that Aida left. Thankfully, the meeting wasn’t too far away.
Then there was the lice incident. Samuel was dragged up the front pathway with his feet barely touching the ground and tossed inside with the same intensity that Ellen had been ripped from my arms. He’d been collected for the weekend by Aida herself, which was an unusual occurrence. They’d been to a popular Irish pub, not too far from where we lived. It’s a great place to meet friends, especially if you have kids. Outside, the pub has a mini-park and Samuel had been playing in the sandpit. He’d gotten some of the sand in his hair, which Aida mistakenly thought was lice. So she immediately brought him home, and after treating him like an infected piece of garbage, accused me of being a bad parent. In front of her son, she stated ‘I’m not having this child in my house. He’s got lice! What kind of parent are you? Don’t you check?’ Then, thankfully, she left.
From the very beginning of their relationship, some friends and mutual acquaintances had encouraged me to meet with Martin’s ex-wife, Macy. But I hadn’t done anything about it. I had Kathy advising me on how best to deal with Aida. But after the lice incident, I felt like I had to do more. Telling a four-year-old that his mother wasn’t well didn’t feel like an effective strategy, and it didn’t help to protect him. I couldn’t think of anything else other than to learn more about Martin, and what Aida might be dealing with. And more importantly, what Ellen and Samuel were possibly being subjected to. Samuel had unquestionably settled with me, but I wasn’t sure he had been with me long enough for it to make a difference in court. I had grave concerns about how Aida and Martin would react to my meeting with his ex-wife, and I felt certain Aida would somehow find out.
We arranged to meet early one morning at the News Cafe. I thought I was concerned, but Macy looked decidedly uncomfortable. She and her children were still in hiding, and I felt certain that if I hadn’t been early she may have just left. She knew about Samuel, and that Ellen was now living in Martin’s house. So, despite her fear, as a mother she felt she had to let me know what her children had been through. Neither of us wanted anything to eat. Macy had arrived before me, so I ordered the same café latte that she had and asked for an additional glass of water.
Hers was a story of escalating violence. He’d routinely conduct military-style inspections of her children’s rooms. He’d always find some reason to completely trash the rooms so they’d have to tidy all over again. ‘If I tried to intervene’ she said, ‘I’d be slammed face-first into the wall and held there, while he continued screaming at the children.’ Later, it escalated to being held and punched repeatedly in her kidneys. Her terrified children used to wet themselves while being told he could kill their mother, and no one would be the wiser. ‘Do whatever you have to,’ Macy said, ‘but get your children out of that house and as far away as possible from that man.’
She suggested I have a word with the local police station, where she’d filled several reports of domestic violence. However, as is often the case with domestic violence, she’d declined to have him prosecuted. As proof, she was willing to supply me with the contact details for some of their neighbours who she’d fled to for help. And she offered her consent to have her daughter’s therapist speak to me. She told me both of her children were still in therapy. Then she finished with the most devastating part of her ordeal with Martin. ‘If you speak to my daughter’s therapist,’ she said, ‘you will find that we now suspect Martin may have been sexually molesting my daughter, and we’re especially concerned about the night she was hospitalized with a fractured pelvis.’
Even with my background, it was a lot for me to process. All I knew was that it wasn’t the kind of information I could ignore. I needed to take action, but I wasn’t sure exactly what I could or should do. I only knew that I needed to calm down.
A few days later, after an urgent session with Kathy, I called Macy to find out if she’d be willing to talk to Aida. And it didn’t take much to get Aida to agree to meet with Macy. But it turned out to be a mistake – I may have put Macy and her kids in more danger. Surprisingly, Aida did get back to me after the meeting. But only to let me know she thought Macy didn’t possess any evidence that would corroborate her story. Perhaps at this point I should have let it go. However, I happened to believe Macy, so I simply couldn’t. Next, I attempted to reach Ellen’s biological father, who for as long I’d known Aida had always resided in the United States. In my opinion, he was a brilliant long-distant father who never failed to remember Ellen’s birthday and other special occasions. He paid for her maintenance like clockwork, and he usually flew out at least once a year to spend time with his daughter. I believed the two of us had a good relationship, or at the very least a cordial one. After several attempts and a promise to return my call, I never heard back from him. I didn’t want to involve Aida’s parents, but I was all out of options so I reluctantly passed the information onto Ellen’s grandfather, who I trusted would do his best to look out for her. While I knew that I should never underestimate the situation, I found a small measure of comfort in not being able to imagine Martin capable of physically abusing Aida.
SAMUEL SNATCHED
I may have had a plan to put up with anything that Aida might decide to throw at me, but I couldn’t expect a four-year-old toddler to understand – and Samuel was becoming increasingly reluctant to go to his mother.
It all came to a head when Aida sent Ellen’s au pair to collect Samuel and he didn’t want to go. In the back garden, he held on for dear life to the jungle gym that I’d moved from the townhouse. He clung to a ladder, then reached out for every doorway through the house as I did my best to encourage him. Once in her car, he made one final attempt to reach out to me – I didn’t see his arms and I accidentally shut the door on them. Samuel had had enough, and I’d had enough. Knowing full well how my email would be interpreted, I had to at least try to explain the incident to Aida.
I wasn’t being entirely honest when I told her I didn’t think Samuel was picking sides, or that he loved one parent more than the other. I said he was simply being a normal kid who at times preferred being at home. I was asking for her help, while at the same time letting her know that I couldn’t see myself physically forcing Samuel again. But perhaps I was out of line when I suggested she consider spending more regular quality time alone with Samuel.
I never heard back from Aida, and I was grateful I hadn’t received another letter accusing me of parental alienation. Then, a few weeks later, as if nothing had happened, I received a message that her parents would be visiting. Brilliant, I thought. He loved his grandparents, and Samuel was always excited about spending time with them so I wouldn’t have any trouble convincing him to spend the weekend at his mother’s house. I was so relieved that they were in town, I never for a moment suspected Aida might be up to something. Perhaps I should have been more aware, but even if I had been there was absolutely nothing that I could have done differently. But I didn’t suspect a thing until Samuel wasn’t dropped off by his grandparents on Sunday afternoon. Without fail, they always called to confirm I was at home. Only this Sunday, there was no call, and no response to any of my frantic calls, messages, or emails. According to our agreement, Aida had a right to drop Samuel on Monday mornings at his kindergarten. However, she’d never previously taken advantage of this option. Still, I spent Monday morning trying to reach Aida and hustling to and from his kindergarten, hoping in vain to find him safely at school. Finally, I received a response from yet another new attorney which read: ‘Our client has enrolled Samuel at a new school in the northern suburbs of Cape Town as of the 18 March 2002. Our client has spoken to Doctor Charles Malcolm who has confirmed the original arrangement by following his advice. It is further our instructions that Doctor Malcolm is more than willing to facilitate the movement of Samuel between his parents.’
I’d heard of Doctor Malcolm during my previous application for custody of Jeremy. He’d been one of the three highly regarded clinical child psychiatrists whose assessments carried a lot of weight with the family advocates’ office. I couldn’t work out when or how he’d had an opportunity to evaluate Samuel’s situation, and I hadn’t been interviewed. On enquiry, he confirmed that he hadn’t assessed Samuel, and he assured me he would never advise a parent to make any changes to a child’s routine before concluding a thorough investigation. I immediately entered an urgent application to the High Court to consider placing Samuel back in my care pending an investigation.
My application stated that Aida’s actions had shown little or no insight into Samuel’s needs. He had been removed from his school, friends, home, and his primary caregiver without any psychological preparation to emotionally cope with the sudden change. I respectfully submitted that Samuel needed to be returned, pending a proper investigation regarding interim custody, pending action to obtain custody. I added that should it be decided that Samuel be returned to Aida, it should be done with the help of professionals and not in the way Aida had acted.
Aida’s attorney counter-argued that according to our current access agreement, mathematically, Aida spent more time with Samuel than I did. This may well have been the case if Aida had kept to the agreement, but I knew I could easily prove that she hadn’t. She’d apparently had no option but to take the drastic step of removing Samuel because our home life had been unsettling, inconsistent, and inconsiderate of Samuel’s needs. When my attorney raised Aida’s current live-in partner’s abusive behaviour towards Aida as the possible cause for Samuel’s reluctance to go to her, they countered with what I’d naively written off as attention-seeking – her urgent messages and her requests to meet at clandestine restaurants that nearly had me arrested. These were now used to portray me as an abusive ex-husband, someone who apparently couldn’t let go of her. And she falsely claimed I’d threatened her on numerous occasions with ‘If I can’t have you, then no one else will.’
Aida’s original decision to separate Ellen and Samuel had been based on the idea they would both receive better individual attention. Now everything was reversed. Jeremy’s return was considered of no benefit. Moving Samuel would give him more quality parental time. And Aida claimed to be the work at home parent – which any two-second investigation would reveal as false. We hadn’t included Macy’s testimony nor her concern that her daughter may have been sexually abused by Martin because we believed it would be determined through the investigation. But that didn’t stop them from implying that Samuel might have been sexualised while in my care. And as expected, Aida concluded her affidavit with, ‘Bearing the history of drugs, violence, and abusive behaviour, I do not believe it is in my son’s interest to spend any more time with his father.’
Still, my attorney and the advocate employed to present my case were both confident that the court rarely declined an application for an investigation into the best interest of any child. And I was confident that the truth would easily be revealed through a thorough investigation. Except it was all over in what felt like less than a minute. The presiding judge had already made his decision based on our affidavits and his understanding of the law. So he immediately interrupted my advocate with his decision before our argument could be presented. It read as follows:
‘The child belongs with the mother, her choice to leave him in the care of his father is the right of a custodial parent, she has the right to now decide differently and is merely fulfilling her right and duty afforded to and expected from the custodial parent.’
In other words, there would be no investigation for Samuel. And with that decision, my sanity left the room. At that moment, I realized it was within me to commit murder and so much more.
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