Child custody

Custody is not often contested in the majority of divorce cases but the different forms of child custody can be points of argument.

Most divorces where there are minor children involved are settled on the basis where one of the parents has custody of the children with the other parent having visitation rights or on a joint custody basis.

In matters of child custody and visitation the amount and frequency of visitation rights are clearly laid out and the non custodial parents maintenance payments are clearly set out. In every divorce, irrespective of any agreements made by the parents, the courts will only award a divorce where minor children are involved in the best interests of the children.

The courts do not consider gender in custody cases, each parent is viewed in the same light with equal care capabilities taking into account, the best possible environment for the children’s growth and development. It is essential that you visit our recommended reading section in order to effectively guide your children through the emotions they will experience during and after your divorce.

Custody disputes

In custody disputes what will typically happen, ia that the courts will make an interim custody and interim maintenance order pending the submission of evidence from both parties attorneys in which there is sufficient evidence allowing the court to make an award. The family advocate will interview the parents and the children individually and be asked to prepare a report for the high court. The courts will then make a decision based on all of the evidence recieved from the three parties.

The wishes of the children are also considered under the new childrens act providing the children are of a certain age.

Factors which influence the decision of the courts include:

  • Parental contact, current and historically
  • Any circumstance like neglect and cruelty.
  • The child’s sex and age
  • The experience of security including feeling wanted
  • All aspects of a balanced upbringing including, moral, religious and emotional well being
  • The type of accommodation
  • The type of educational facilities being offered
  • Current living arrangements

Custody hearings are high court issues and are likely to be very expensive and it is often suggested that in cases where the parents can simply not come to an agreement in custody matters, that mediation be sought. The first port of call in any disputed custody should be the offices of the family advocate which are available at Magistrates courts.

In terms of section 35 of the Children’s Act a person who has care or custody of a child in terms of a court order refuses another parent access to that child or prevent that parent from exercising those rights will be guilty of an offence.