Legal Talk

Divorce: Who gets the children when both parents are able to take good care of them

One of the most emotionally charged aspects in any divorce proceedings undoubtedly revolves around the children. In particular having to decide which the parent the child should live with, post the divorce. Prior to the Children's Act, which came into effect in 2010, there was a natural bias in favour of the mother. This was often referred to as "the maternal preference rule". No one, least of all the courts, wanted to cause a child to undergo any more trauma than he or she was already subjected to, by the divorce of the parents. It was thought that it's best to let the children remain with mom.

All that changed and the maternal preference rule was significantly altered with the implementation of the Children's Act. According to this Act, either of the parents could be given primary residency of the minor child. The guiding principle being that it must be in the best interests of the child.

What happens when both parents are good and loving parents and both are able to provide good support to the children Which parent will be considered more suited to having the children reside with them on a full time basis and allow the other parent weekend access It's not an easy question to answer and the courts really do have their work cut out for them in these circumstances

The family advocate report recommended that the children stay with the mother. However by the time the divorce was before the court, almost a year had passed and the circumstances that existed at the time of the report were made, had changed. The court said that it could therefore not rely on the Family Advocate report as a guide.

In delivering his judgment, Justice De Klerk said that a child's best interests must be "determined according to the facts and particular circumstances of each case. He said one cannot put undue weight on any one factor, but had to take into account all the relevant factors of that specific case, in order to work out what would be in the best interests of the child.

Divorce inevitably occasions change in the lives of children such as adjusting to the daily absence of one parent, while living with the other and going back and forth between two different households. Each individual child also responds differently towards a divorce. There is further no doubt that over the last number of years the roles and responsibilities of parents within the family structure as well as social norms and patterns have changed. Fathers have also taken up parenting roles, and mothers have also followed careers.

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