Living arrangements - Where will the children live post Divorce?
Where and with whom the child is to live is always a topic that creates tension for parents. Traditionally, care of the children was awarded to the mother, unless there were extraordinary factors that dictated otherwise. Today, parental roles are changing, and the so-called ‘tender years’ doctrine that presumes that, because the woman is the mother, she must be the superior or de facto parent, is starting to vanish. Courts have started to recognise that the father may be equally able to fulfill the role of mother and vice versa. The great irony is that family law experts often quibble over how much contact fathers should be allowed to have with their children in cases where the children will not be cared for exclusively by their mothers, with the result that, oftentimes, infants and toddlers spend long periods in the care of unfamiliar child-care workers or at creches, or are handed off to relatives and friends. Similarly these days, a person’s sexual orientation cannot exclude him/her from being awarded care. The sole criterion to be applied in matters of care is the best interests of the child principle.
When shared parenting is out of the question, where the child should primarily reside will need to be established. To decide this, one must look at which parent primarily prepares and plans meals; baths, grooms and dresses the child; cleans and cares for school clothes; takes the child to the doctor; arranges social activities; puts the child to bed, gets the child ready for school; and provides discipline.
Conflict often arises when children express their own desires. Our law recognises that children should be given an opportunity, if they are of an appropriate age, to voice their opinions, wishes and preferences on questions such as where they should live. The Act does not stipulate from what age a child’s views should be taken into account, but it does state that a child of adequate age, development, maturity and intellectual capabilities should have his/her views and wishes considered. Each case is therefore dependent on circumstances and the personal competencies of the child involved. Factors to consider when assessing a child’s competency include cognitive ability, biological and mental age, level of maturity in comparison to peers, ability to understand, comprehend and answer questions, and school grades.
Where siblings are involved, it is usually desirable to keep them together. However, once again, children should be allowed to express their wishes in this regard. In some instances, daughters may prefer to live with their mother while sons may prefer to live with their father, even though it is a recognised principle of our law that it is desirable to keep siblings together and thus to maintain the status quo. The reformation of the family structure on divorce can be very stressful for a child, so when there is no preference shown, it is always desirable to keep siblings together and have them reside with one parent, or both in terms of a shared residency plan.
When a court has to decide which parent is better able to promote and ensure a child’s welfare, it will look at the following factors or criteria:
Usually the Office of the Family Advocate, who is an officer of the court employed by the Department of Justice, will act as an adviser to the court and as a mediator between families and the court to determine whether or not a child’s view should be considered. After assessing the child and the parents, they will make certain recommendations to the court to assist the court in deciding the case. Organisations such as the Family Mediators’ Association of the Cape (FAMAC) and the South African Association of Mediators (SAAM) also offer similar services, but are not free of charge.
When shared parenting is out of the question, where the child should primarily reside will need to be established. To decide this, one must look at which parent primarily prepares and plans meals; baths, grooms and dresses the child; cleans and cares for school clothes; takes the child to the doctor; arranges social activities; puts the child to bed, gets the child ready for school; and provides discipline.
Conflict often arises when children express their own desires. Our law recognises that children should be given an opportunity, if they are of an appropriate age, to voice their opinions, wishes and preferences on questions such as where they should live. The Act does not stipulate from what age a child’s views should be taken into account, but it does state that a child of adequate age, development, maturity and intellectual capabilities should have his/her views and wishes considered. Each case is therefore dependent on circumstances and the personal competencies of the child involved. Factors to consider when assessing a child’s competency include cognitive ability, biological and mental age, level of maturity in comparison to peers, ability to understand, comprehend and answer questions, and school grades.
Where siblings are involved, it is usually desirable to keep them together. However, once again, children should be allowed to express their wishes in this regard. In some instances, daughters may prefer to live with their mother while sons may prefer to live with their father, even though it is a recognised principle of our law that it is desirable to keep siblings together and thus to maintain the status quo. The reformation of the family structure on divorce can be very stressful for a child, so when there is no preference shown, it is always desirable to keep siblings together and have them reside with one parent, or both in terms of a shared residency plan.
When a court has to decide which parent is better able to promote and ensure a child’s welfare, it will look at the following factors or criteria:
- The love, affection and other emotional ties that exist between parent and child, and the parent’s compatibility with the child.
- The capabilities, character and temperament of the parent, and the impact thereof on the child’s needs and desires.
- The ability of the parent to communicate with the child and the parent’s insight, understanding of and sensitivity to the child’s feelings.
- The capacity and disposition of the parent to give the child the guidance he/she requires.
- The ability of the parent to provide for the basic physical needs of the child.
- The ability of the parent to provide for the educational well-being and security of the child.
- The ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development.
- The mental and physical health and moral fitness of the parent.
- The stability or otherwise of the child’s existing environment, with regard to the desirability of maintaining the status quo.
- The desirability or otherwise of keeping siblings together.
- The child’s preference, if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration.
- The desirability or otherwise of applying the doctrine of same-sex matching, i.e. keeping sons with fathers and daughters with mothers.
- Any other factor that is relevant to the particular case with which the court is concerned.
Usually the Office of the Family Advocate, who is an officer of the court employed by the Department of Justice, will act as an adviser to the court and as a mediator between families and the court to determine whether or not a child’s view should be considered. After assessing the child and the parents, they will make certain recommendations to the court to assist the court in deciding the case. Organisations such as the Family Mediators’ Association of the Cape (FAMAC) and the South African Association of Mediators (SAAM) also offer similar services, but are not free of charge.
