Who gets the children in a divorce settlement?

2013-09-12 00:00

I AM dealing with several divorces where the only issue the parties disagree on is the care (custody) of their minor children.

I would like to take this opportunity to remind parents of Section 9 of the Children’s Act, which echoes the words of s28 (2) of the Constitution (Act no. 108, 1996), where it is stated: “In all matters concerning the care, protection and wellbeing of a child, the standard that a child’s best interest is of paramount importance, must be applied.”

Section 6 of the Divorce Act holds that a divorce order will only be granted if the court is satisfied that the clauses pertaining to the children are in the best interests of the children.

“The courts have also moved away from the view that mothering is a component of a woman’s being only, and have emphasised that parenting is a gender-neutral function.

“The assumption that the mother is necessarily in a better position to care for a child than the father is a thing of the past.”

In the case of P vs P (2007) 3 All SA 9(SCA), the court held that, in determining what custody arrangement would best serve the children’s interests, a court is not looking for the “perfect parent”, as there is no such being. The court’s quest is to find what has been called “the least-detrimental available alternative for safeguarding a child’s growth and development”.

When parties are in disagreement about the care (custody) of minor children, s7 (1) of the Children’s Act must be applied in order to determine “the best interests of the child standard”.

The following factors must be taken into consideration where relevant.

• The nature of the personal relationship between the child and the parents, or any specific parent, and the child and any other caregiver or person who is relevant in those circumstances.

• The attitude of the parents, or any specific parent, towards the child and the exercise of parental responsibilities and rights in respect of the child.

• The capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs.

• The likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from both or either of the parents, or any brother or sister or other child, or any other caregiver or person, with whom the child has been living.

• The practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis.

• The need for the child to remain in the care of his or her parent, family and extended family, and to maintain a connection with his or her family, extended family, culture or tradition.

• The child’s age, maturity and stage of development, as well as the child’s gender, background, and any other relevant characteristics of the child.

• The child’s physical and emotional security and his or her intellectual, emotional, social and cultural development, and any disability that a child may have.

• Any chronic illness from which a child may suffer.

• The need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment.

• The need to protect the child from physical or psychological harm that may be caused by

subjecting the child to maltreatment, abuse, neglect, exploitation or degradation; or exposing the child to violence or exploitation or other harmful behaviour, or exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person.

• Any family violence involving the child or a family member of the child.

• Which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.”

The outcome of a care (custody) or divorce matter often pivots on the efficiency and experience of the attorney handling the proceedings.

Make sure you hire the best legal help you can afford.

• Claudia Garella founded Garella Attorneys, which specialises in the practice of law.

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