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Article by listed attorney: Fawzia Khan

One of the most emotionally charged aspects in any divorce proceedings  undoubtedly revolves around the children. In particular having to decide which the parent the child should live with, post the divorce. Prior to the Children’s Act, which came into effect in 2010, there was a natural bias in favour of the mother. This was often referred to as “the maternal preference rule”. No one, least of all the courts, wanted to cause a child to undergo any more trauma than he or she was already subjected to, by the divorce of the parents. It was thought that it’s best to let the children remain with mom. This meant that invariably on divorce of the parents, the minor children got to live with the mother whilst dad was given access every alternate weekend. To challenge that position, the father would have had to prove that the mother was unfit to have custody of the children. The criteria defining what being unfit meant was very narrow and was very difficult to prove. All that changed and the maternal preference rule was significantly altered with the implementation of the Children’s Act. According to this Act, either of the parents could be given primary residency of the minor child. The guiding principle being that it must be in the best interests of the child.

What happens when both parents are good and loving parents and both are able to provide good support to the children? Which parent will be considered more suited to having the children reside with them on a full time basis and allow the other parent weekend access? It’s not an easy question to answer and the courts really do have their work cut out for them in these circumstances. To assist the court to coming to a decision, the family advocate needs to provide a report to the court. Ultimately the court will make the final decision. A case involving minor children where the parents (both of whom were good parents and busy professionals), were getting divorced, dealt with this dilemma. The family advocate report recommended that the children stay with the mother. However by the time the divorce was before the court, almost a year had passed and the circumstances that existed at the time of the report were made, had changed. The court said that it could therefore not rely on the Family Advocate report as a guide.

In delivering his judgment, Justice De Klerk said that a child’s best interests must be “determined according to the facts and particular circumstances of each case. He said one cannot put undue weight on any one factor, but had to take into account all the relevant factors of that specific case, in order to work out what would be in the best interests of the child. He quoted another case, which went before the Constitutional Court, where the constitutional court said that in trying to establish what’s in the child’s best interests, one could “not apply a pre-determined formula”. The courts needed to look at all the circumstances of that particular case. The judge also said “the continued involvement, companionship, love and support from both father and mother after separation and divorce, enhances a child’s sense of security. Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce. There is further no doubt that over the last number of years the roles and responsibilities of parents within the family structure as well as social norms and patterns have changed. Fathers have also taken up parenting roles, and mothers have also followed careers.  The norm these days are rather that of working parents who manage with the assistance of aftercare, domestic workers and family. After carefully considering all the evidence before it, the court held that primary residency of the children should be given to the father and gave the mother generous rights of contact to the children. See also: Emigration after divorce - minor children.


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