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Care And Contact of Children

When a divorce is inevitable, a couple must decide who will be the parent of primary residence and who will be the parent of alternate residence of the minor children. In most cases, care is settled between the two parents.

Prior the enactment of the new Children’s Act the parental responsibilities were referred to as custody and access, now those terms have been amended to include new terms of “parenting responsibilities and rights”, which include the rights to care for the children, and the responsibility and the right to maintain contact with the children.

Disputes normally centre on the following questions:

  • Will the care awarded be sole care (if so to which parent) or joint care?
  • How much contact the parent who is not awarded care should have to the child?
  • What the amount of maintenance should be paid for the children?

A divorce will only be granted by the court if the court is satisfied that the children’s best interests have been provided for. The parties may agree amongst themselves on how the care and contact of the children will be dealt with but at the end the court has the sole discretion and will ensure that the children’s best interests are always taken into account.

It is important to note that our Courts will not be looking for the so-called “perfect parent”, as no such type of parent exists. Our courts will opt for a solution that is “the least detrimental available alternative for safeguarding a child’s growth and development”. Our courts have also emphasised that the concept of parenting is a gender neutral function, and the mother or father are seen as equally capable to care for a child.

If there is a risk that one of the parents will abscond with the children, the court may grant an interdict forbidding that parent from removing them from a certain area or from the other parent. Interim application can be made to the High Court for an interim order that will regulate the parties’ rights pending the divorce. In any such dispute, the court will give absolute priority to the interests of the children by always ensuring their “best interests” are accounted for.

Ultimately, the care and contact regarding children can be determined by the High Court or the Family Court. Agreements concerning the care of children, and arrangements for contact by the parent who was not granted care or residency of the child, should be incorporated into a written agreement.

How care is decided? 

The courts will always consider the welfare and interests of the child before it decide who will award care of a minor child. Of secondary importance a Court will also regard the interests, rights or wishes of the parents.

Once an agreement is reached between the parties, the Court will make a parenting plan an order of court simultaneously when the divorce is granted.

When there is a dispute over who is going to be awarded care, the court may delay making an order at the divorce hearing until it has received sufficient evidence to decide what arrangements will be in the best interests of the children. Evidence may be given by the family advocate, doctors, relatives or friends of the family, all of whom may be cross-examined on their evidence.

The court may ask the office of the Family Advocate to compile a report on both parties and the sort of home that each is able to offer. If the court does not make such a ruling, either party may ask the judge to request a report from the office of the Family Advocate if it is believed that this will resolve a possible deadlock.

The ability of one parent to provide the children with a better standard of living than the other parent will not be taken into account, for example, it will be irrelevant whether the children should be given to the mother, who can offer only a modest home, or the father, who can offer a life of luxury.

The Children’s Act has also introduced the idea of considering the views of the child in order to decide who will be awarded care. If the child is of an age, maturity and stage of development then that child will be given the right to participate in any matters concerning the care of that child. The child’s views must be given due consideration. In some circumstances a child may be able to bring their own matter to court, where one of the parents or a third party (curator) can act as a guardian and represent the child on his/her behalf.

The Children’s Act promotes gender equality so; as long as one parent provides a good home for the child the court will grant the applicant a care order. Where a father can provide a good home for the child and a mother substitute such as a housekeeper, a family member, or a second wife, whereas the wife can offer only inferior accommodation and will be away at work often, the father may be awarded care of the child.

The court will take various factors into account:

  • The amount of contact the child has had with each parent.
  • The record of each party as a parent (any neglect or cruelty will obviously be important, as will the amount of love shown).
  • The child’s age and sex.
  • The child’s feeling of security and being wanted.
  • The child’s physical, moral, emotional and religious well-being.
  • The accommodation each can offer.
  • The educational facilities offered.

Another important consideration is the place where the children have lived up to the time of the court hearing or separation of the parents. The courts do not like to disrupt the lives of children by moving them, unless it is necessary.

Sometimes a care order may be suspended; for example, it will take effect only from the time the parent who gets care can provide suitable accommodation for the child, or it may take effect, for example, only from the time that the child returns from overseas.

Mediation

Mediation can be a much cheaper way of settling issues in a divorce. The couple can agree on a parenting plan, to determine the parental rights and responsibilities of each parent. Issues that will be addressed in the parenting plan include where the child will live, maintenance of the child, contact between the child and any of the parents and any other person and the schooling and religious upbringing of the child.

The interests of minor or dependent children whose parents are divorcing are protected by the Mediation In Certain Divorce Matters Act, 1987. In terms of this law, the mediation is done informally by a family advocate, the purpose being to secure a speedy settlement of disputes between couples, or a suitable compromise.

Control

Often neither parent can provide a satisfactory home for the children. In such an instance, the court will, as a rule, try to award care to another relative, such as a grandparent.

When granting care to anyone other than the parents the court will take into account the child’s relationship with this other person, the amount the other person has contributed to expenses of the child regarding birth and maintenance, the degree of commitment the other person has towards the child and the child’s best interests.

Sole care

An order for sole care is only granted in very extreme cases. A sole rights and responsibilities order curtails the parental powers of the parent who was not granted care.

This right to determine the children’s lifestyle includes the right to decide, within the financial constraints, what school they should attend and also to choose whether or not they should go to boarding school, or even to university.

Whether the parent who has care has the right to decide on the religious faith that the children will follow depends on the circumstances. Generally, the courts will give preference to his or her wishes over those of the other parent; but it may not do so for good reason, such as, possibly, a change in the children’s religious upbringing from what was observed before the divorce was granted.

The parent with care has the right to set out social and moral guidelines for the children. In particular, he or she may decide with whom the children may mix socially and whose homes they may or may not visit.

However, the children’s living arrangements must be satisfactory. If they are not, the other parent may apply for an order depriving the care giving parent of care.

The care giving parent has the right and the duty to ensure that the children are given any medical or dental treatment that they may require, although where a child needs major and, possibly, life-threatening surgery, a parent who has care of that child must obtain the other parent’s consent beforehand, unless the situation is one of such emergency that the other parents permission cannot be obtained in time.

The care giving parent has the right to apply for a child to acquire South African citizenship by naturalisation.

Guardianship

If one of the parties is an unfit parent, the court may award sole guardianship to the other.

The effect of sole guardianship is to give the parent in whose favour the order was made the unfettered right to consent to the marriage or adoption of the child, and also gives that parent the right to name a person to succeed him / her as the sole care giver of the child on his or her death.

Parents’ rights to see a childIn many cases, a court will stipulate that a parent who is not awarded care should have reasonable contact to the children, and leave the arrangements to the parties. Even where the court makes no mention of contact, a parent who is not awarded care is entitled to reasonable contact to his / her children.

In terms of section 35 of the Children’s Act a person who has care or custody of a child in terms of a court order refuses another parent access to that child or prevent that parent from exercising those rights will be guilty of an offence.

Enforcement

A court can make an order to comply with an existing care order. The fact the children have been removed from the court’s jurisdiction does not preclude the court from making such an order, as long as the children are still within South Africa.

When an order can be changed?

No care order in terms of the Divorce Act or Customary Marriages Act is final, and may therefore be changed or done away at any time. The parent who wants to amend the order must prove that the existing order is detrimental to the child and that changing the order is in the child’s best interests. A court will consider the care giving the parents’ situation as well as the child’s wishes if he/she is mature enough to give them.