It’s a child’s right to have contact with both his or her parents. The amount and kind of contact a parent should have with a child is decided according to the Children’s Act.

Each situation is unique and the conclusion will depend on the facts presented in court, the child’s development, the parent’s relationship with the child and the child’s wishes, when applicable.

What’s at stake?

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 should the parent who is not awarded care have with the child?
    • What maintenance should be paid for the children?

The court will only grant a divorce if it is satisfied that the children’s best interests are provided for. The court will not be looking for the so-called “perfect parent”, as no such parent exists. A solution that is “the least detrimental available alternative for safeguarding a child’s growth and development” will be reached, and the mother or father is seen as being equally capable to care for a child.

The care and contact regarding children can be determined by either the High Court or the Family Court. Agreements concerning the care of children should be incorporated into a written agreement.

Court deliberates

The ability of one parent to provide the children with a better standard of living than the other will not be taken into account; as long as one parent provides a good home for the child, the court will grant the applicant a care order.

In some circumstances a child may be able to bring his or her 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 or her behalf.

Mediation

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

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.

 

Sources

 

http://www.divorcelaws.co.za
http://www.familylawclinic.org.za

 

Revised by M Collins