Custody and child support after divorce

The divorce of people who have children born of the marriage has consequences for themselves as parents, but also for the children born of that marriage. This blog seeks to provide insight on the responsibilities and rights of parents post-divorce.

The Children’s Act 38 of 2005 defines the parental responsibilities and rights which parents or other parties may have, and confers equal and joint guardianship status on parents of children born of the marriage.

In terms of section 9 of the Children’s Act, the child’s best interests are of paramount importance when dealing with any matter concerning a child. The provisions of this section has become commonly known as the “best interests of the child principle”. In assessing the best interests of the child, the Court considers various factors including:

1. the nature of the personal relationship between:
  – the child and the parents, or a specific parent; and
  – the child and any other caregiver or person relevant in the circumstances;

2. the attitude of the parents, or a specific parent, towards:
  – the child; an
  – the exercising of parental responsibilities and rights;

3. the capacity of the parents, or a specific parent, or any other caregiver or relevant person to provide for the needs of the child, including emotional and intellectual needs;

4. the likely effect on the child of any change in his/her circumstances, including any separation from
  – both or either of the parents; or
  – any sibling or other child, caregiver or relevant person, with whom the child has been living;

5. the practical difficulties and expense of the child having contact with either or both parents, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with either or both parents on a regular basis;

6. the need of the child:
  – to remain in the care of his/her parent(s), family and extended family; and
  – to maintain a connection with his/her parent(s), family, extended family, culture or tradition;

7. the child’s:
  – age, maturity and stage of development;
  – gender;
  – background; an
  – any other relevant characteristics;

8. the child’s physical and emotional security, as well as his/her intellectual, emotional, social and cultural development;

9. any disability the child may have;

10. any chronic illness from which the child may suffer;

11. the need for the child to be brought up within a stable family environment and, where this is not possible, in one resembling as closely as possible a caring family environment;

12. the need to protect the child from any physical or psychological harm that may be caused by:
  – subjecting the child to maltreatment, abuse, neglect, exploitation, degradation, violence or other harmful behaviour; or
  – exposing the child to maltreatment, abuse, degradation, ill-treatment,
violence or other harmful behaviour towards another person;

13. any family violence involving the child or a family member; and

A divorce court hearing a divorce matter where children are involved is assisted by the office of the Family Advocate, which evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court.

The Family Advocate’s involvement is a practical solution to the requirements of section 6 of the Divorce Act which stipulates that a divorce cannot be granted until the court is satisfied that the provisions of a particular divorce order are in the best interest of the minor children involved therein.

The recommendations made by the Family Advocate are in the form of a parenting plan, which if accepted by the divorce court will be made an order of court. The parenting plan will generally cover the following topics relating the responsibilities and rights of the parents:

– Primary residence, which is when the children stay with one parent on a full time basis and visitation plans are made for the other parent.
– Contact which is when the parent who does not have primary residence will see, visit, be visited by or generally contact the child
– Maintenance of the minor child which includes inter alia basic necessities, school fees, groceries, medical expenses.

Contrary to popular belief, mothers do not always get primary residence of minor children. The court, with the assistance of the Family Advocate decides which parent would be better suited to reside with the child after assessing the best interests of the child taking note of the above criteria.