Navigating the thorny issues of care and contact of minor children during divorce proceedings

Most divorces are conflict-driven. If not, chances are pretty good the marriage would still be intact. For a couple whose marriage relationship has reached such a state of disintegration, divorce is normally the only way to formalise the termination of the relationship. Trying to navigate through the sweeping changes at this junction in one's life and all the associated upheaval that a divorce carries is understandably challenging.

For that reason it's crucial that your personal and legal rights during a divorce are properly secured by a good divorce attorney. Engaging

a specialist divorce attorney means you will benefit from the sound advice and knowledge of that attorney but also from the years of litigation experience which that attorney will be able to offer to you, especially at a time when you are so emotionally fragile.

An attorney who specializes in divorce will ensure that you are fully aware of the all the risks and benefits to any particular legal approach to be undertaken. You attorney should be able to give you advice whether or not whether you have a strong case and how the courts are likely to rule on a particular set of facts.

This will allow you to be more circumspect as to whether or not you should risk approaching the court for particular relief, thereby save you from incurring legal costs especially during a time when your finances may be taking strain. When children are caught in the cross-fire of the divorcing parents, the decision involving the children such as which of the parents will provide primary residency to the children, whether or not the children should be relocated to another place, [if a parent who wants to start a new life away from the previous matrimonial home], what type of contact is to be awarded to the other parent, have to properly considered.

The courts are expected to look at what is in the child's best interests, as this is the paramount test. Two urgent applications dealing with these precise issues were brought separately by a couple in Gauteng in March 2022. In this case, the mother moved out of the matrimonial home in October 2021, taking the couple's three minor children. She informed her husband via her attorney that he was not to have contact with the children and a month later obtained a domestic violence interdict against the father.

The father denied all knowledge of the domestic order saying he did not receive notification of the application and said this was simply a strategy to stop him from having contact to the children. The mother secured employment in Bloemfontein and wanted to relocate the children to Bloemfontein. The father who was the sole financial provider for the children told the court that he did not believe the relocation was in the children's best interest. He said the lives of the children would be further disrupted because there was no support network there and the children's maternal and paternal grandmothers were in Pretoria and that the father could also offer services of a nanny and an au pair to the children.

The court agreed with the father's submissions and ordered that pending the finalisation of the divorce, primary residency of the children must be awarded to the father in Pretoria. It gave the mother rights of contact to the children. The court also ordered that a case manager or parenting facilitator be appointed.

The role of this facilitator was to minimise the trauma for the children and who could deal with their issues in a child-centric, collaborative manner, and who would also function as a mediator and as a monitor, regarding the disputes before court between the parties. The court also ordered that a psychologist be appointed to conduct a forensic psychological investigation of the children and to make their report known to the court.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving YOU the Power of Attorney. Contact us on email at fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.