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Article by Durban divorce attorney: Fawzia Khan

Having to decide which parent gets to have primary residency of the children after a divorce remains one of the major areas of dispute, for a couple locked in divorce litigation. It’s often espoused that children who get to spend equal time with both set of parents will benefit a great deal more than those who only sees the non-custodial parent perhaps every alternate weekend and during school holidays.

Shared residency is where the children live with each divorced parent for equal amounts of time often on a weekly basis. Both parents would continue to be totally involved in the lives of the children. Often the non-custodial parent is normally not part of the daily grind of the child’s life or his/ her challenges. However, on closer inspection such a shared residency could potentially cause hardship, stress and instability for the children, if certain key arrangements are not in place.

Remember in a shared residency scenario the children would need to have a duplicate of whatever is needed in one house to be also present in the other house. This may mean extra uniforms, school stationary, extra circular equipment, text books and so on. The proximity of where the school is relative to where each parent lives, is equally important. It would be considered unreasonable to expect a child to spend a substantial amount of time travelling to his/her home after school.

The divorced parents approach to how they would co-parent the children, their parenting styles and techniques, including discipline towards the children, what their daily routine needs to be must be broadly similar and consistent. The divorced parents need to put aside any feelings of resentment and anger or sadness they may still harbour towards their ex and focus on rebuilding a relationship with their ex in which they treat each other with respect and in a civil manner and must agree to be co-operative with each other. If the divorced parents are unable to agree to these conditions it’s more than likely that they will cause strain in the lives of the children. Exposing the children to ongoing hostilities will only fuel their insecurities.

In late March 2019, the Bloemfontein High Court delivered its judgment in a case where a mother applied to the court for a variation of her divorce order. She and her ex-husband signed a settlement agreement where they both agreed to shared residency of and to jointly care for their minor children, where each parent shared the children every alternate week. The mother had since re-married and was expecting a child from her second husband. She said that during the week when it was her ex-husband’s turn to take care of the children, she nevertheless continued to collect the children from school and performed all the duties of a primary care-giver. She gave them school lunch, helped them with their homework and the father only collected the children after work. The mother said that she now played the role of a full-time mother and she was in fact the children’s primary care-giver and wanted primary residency to be awarded to her.

The father opposed the application. He said the reason why the mother wanted to amend the court order was due to the fact that the present arrangement was inconvenient to her and not because he failed in any of his obligations and duties. The presiding judge was critical of the fact that the parties had chosen the route of shared residency. He had this to say about shared residency, “It is my personal view that however good the intentions of divorced parents may be, conflict will on all probabilities always be much greater in the case of joint primary care than otherwise”. However, after properly considering all the issues at play, the judge ruled that as the children had already adjusted to this routine for over 4 years, it would not be in their interests to change the status quo and refused to grant the mother the application.

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