Legal Talk

Sharing joint custody of the children. Is it a good idea.

It's often espoused that children who get to spend equal time with both set of divorced parents will benefit a great deal more than those who only sees the non-custodial parent perhaps every alternate weekend and during school holidays.

Shared residency is where the children live with each divorced parent for equal amounts of time, often on a weekly basis. Both parents continue to be totally involved in the lives of the children as often the non-custodial parent is precluded from the daily grind of the child's life or his/ her challenges.

On closer inspection, however, shared residency could potentially cause hardship, stress and instability for the children, especially if certain key arrangements are not in place. Remember in a shared residency scenario the children would need to have a duplicate of whatever is needed in one house to also be available in the other house.

The proximity of where the school is relative to where each parent lives is equally important. It would be considered unreasonable to expect a child to spend substantial amount of time travelling to his/her home after school.

Unless the divorced parents put aside feelings of any simmering resentment or anger they may still harbour and agree to rebuild a relationship with their ex, in which they co-operate and treat each other with respect, shared residency would not likely to work.

In late March 2019, the Bloemfontein High Court delivered its judgment in a case where a mother applied to court for a variation of her divorce order. She and her ex-husband signed a settlement agreement where they both agreed to sharing residency of their minor children, every alternate week.

The mother had since re-married and was expecting a child from her second husband. She said that during the week, when it was her ex-husband's turn to take care of the children, she nevertheless continued to collect the children from school and performed all the duties of a primary care-giver.

The mother said that she now played the role of a full-time mother and she was in fact the children's primary care-giver and wanted primary residency to be awarded to her. The father opposed the application and said the reason why the mother wanted to amend the court order was that the present arrangement was inconvenient to her. Not because he failed in any of his obligations and duties towards the children. The presiding judge was critical of the fact that the parties had chosen the route of shared residency.

However, after properly considering all the issues at play, the judge ruled that as the children had already adjusted to this routine for over 4 years, it would not be in their interests to change the status quo and refused to grant the mother the application.

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