When parents make the tough decision to separate or divorce, one of the initial concerns is which parent will have custody of the children. In the past, it was common for only one parent to have full custody while the other parent received visitation rights. However, recent years have brought significant changes to South Africa’s laws regarding children of divorced or separated parents.
Here are some essential points that parents should be aware of:
The best interest of the child: Our constitution places great emphasis on the well-being of the child when making decisions about their care and upbringing. This means that the child’s welfare should always be the top priority and outweighs the parents’ opinions or desires.
Joint custody: South African law encourages both parents to share the responsibilities and care for their children whenever possible. This means both parents should be involved in making important decisions about the child’s upbringing, and that the child can take turns to live with either parent or spend equal time with both.
Parenting plans: When parents separate or divorce, a parenting plan should be drawn up to outline the child’s residence; visitation schedule; decision-making; maintenance; education; healthcare and religious upbringing etc. These plans are helpful tools to prevent conflict, ensure stability and facilitate smooth transitions between parents.
Mediation: Instead of spending a lot of money and time on court battles to win custody, parents should consider mediation as an alternative. Mediation involves a neutral professional who assists the parents in discussing their children’s futures and reaching a mutually acceptable agreement.
Child Maintenance: Both parents have to share financial responsibility for the child’s upbringing according to their respective abilities and the child’s needs. All costs relating to a child’s care should be listed, divided by the parents, and included in the parenting plan. If parents can not come to a mutual agreement about money, they can approach the Maintenance court for a court order that specifies each parent’s financial obligations.
Visitation (or “Contact”): Children have the right to maintain a relationship with both parents (unless proven by the court not to be in the best interest of the child for one parent to have contact with the child). A parent should create opportunities for, and encourage their children to see the other parent regularly, within reasonable boundaries. It should be noted that one parent cannot deny the other parent contact with the child based solely on non-payment of maintenance.
Children’s wishes and feelings: Our Children’s Act emphasises that children have the right to be listened to and heard. Their views and preferences about arrangements after their parent’s divorce or separation matters should be taken into account to ensure they are happy with the outcome.
Unmarried biological fathers: While biological mothers and married biological fathers have automatic full parental rights and responsibilities, unmarried biological fathers do not. However, there are various ways for unmarried biological fathers to assert their full rights, such as approaching the Office of the Family Advocates or Social Worker for mediation; or approaching the court as a last resort for declaratory order of their full rights and responsibilities towards the child.
Going through a divorce or separation can be very difficult for all members of the family. If you have questions about court proceedings, maintenance, contact with the child or custody, it can be beneficial to consult with a family law attorney for an expert opinion based on your specific circumstances. Reach out to LifeAssist to get connected with a Legal consultant.