One of the very first questions raised by clients wishing to institute divorce proceedings is “Will I get custody of my children?”
In terms of the Child Care Act, the best interest of the child is of paramount importance and is the determining factor insofaras establishing who the custodian parent should be.
Client’s are often unclear on the different types of custody and their legal implications and whilst sole custody or joint physical custody may be what the parent actually wants for his or her child, that may not necessarily be what is in the best interests of the child.
Types of Custody
Sole custody generally refers to having exclusive “physical “and “legal” custody rights regarding the child. This means that the parent granted sole custody shall exclusively be responsible for decisions regarding the upbringing and care of the child.
Our courts are often reluctant to grant sole custody awards in favour of one parent as it is in the best interests of a child to have both parents present and involved in his/ her growth and upbringing.
Sole Custody is usually awarded in cases where one parent is abusive towards a child or of one parent is an unfit parent eg. A drug addict who is incapable of administering the appropriate care and caution that is necessary in the upbringing of a minor child or a parent who is the perpetrator of some form of child abuse against the child.
Such parent is still entitled to access and visitation to the child and in most circumstances such visits and access would be supervised.
Joint custody encompasses both “physical custody” and “legal custody”.
“Physical Custody” refers to the parents right to have the child to live with them. With the application of joint “physical custody”, the child spends equal periods of time with each parent. The child will for example live with one parent for one week and with the other parent the following week.
The advantage of joint “physical custody” is that one parent does not assume the role of the absent parent and the child is able to experience the physical presence of one parent just as much as the other.
Joint physical custody however, may not necessarily be in the best interests of the child as this implies that the child will have two permanent homes which will inevitably lead to a considerable amount of stress and disruption in a child’s life. Whilst the parents may be in a position to cope with such stress and disruption, it must again be stressed that the best interests of the child should reign supreme. Joint “physical custody” will not work with parents living in substantially apart as this would not make sense practically with regards to schooling etc.
“Legal custody” refers to the parents’ right to make decisions about the upbringing of the child which may include the language medium the child should adopt, the religion of the child, the schooling of the child.
For a healthy development in a child, routine is important and it is indeed difficult for a child to cope with the stresses associated with moving from parent to parent.
Most often our courts are of the opinion that both parents should be granted joint “legal custody” of the child, thereby granting both parents equal rights in so far as making decisions revolving around the child’s upbringing and general welfare.
“Physical custody” is usually awarded to one parent, in line with the importance of assisting the child in maintaining a routine with minimum disruption.
Both mother and father hold joint “legal custody”, whilst most often the mother is awarded primary “physical custody”.
With the recent developments in South African Law, it has been held that it is discriminatory and tantamount to a violation of the father’s rights to equality as enshrined in the Constitution of our Land, in viewing mothers as the “preferent caregiver” or the parent who is more responsible in the raising of a child.
“Mothering” is not determined by the gender of the parent and a father is equally responsible in being the parent that is capable of caring for the child’s emotional and physical well - being.
CHILD’S VIEWS ON CUSTODY
Previously the views of the child were not considered in determining the custodian parent, however, with the recent developments in our law, Chapter 10 of Act, provides that “every child has the right to participate and to have a voice.” This means that every child may take part in any matter that concerns the care and well-being of that child, depending on his or her age and maturity level. Hence, the views of the child pertaining to whom the child wishes to live with shall be considered in making decisions on custody.
In summary then, in making a decision regarding the custody of child in South Africa courts generally adopt the following approach:-
- The granting of joint “legal custody” to both parents, with one parent being awarded “physical custody” as the primary caretaker who will provide the primary residence of the child;
- Rights of visitation and access to the other parent;
- “Sole Custody” in the event that it would not be in the best interests of the child to award joint “physical custody” to both parents eg. When such parent is deemed to be an unfit parent. with the best interests of the child being of paramount importance.
Allow our Attorneys to help you ensure that your child's best interests remains of paramount importance at all times.