When a divorce between two parents is inevitable, the couple and/or the court must come to an agreement as to which parent will be the parent of primary residence of the minor children. In most cases, this can be settled between the two parents, but what say do the children have in the decision?
The important questions that need to be answered regarding the custody of children include:
- How much maintenance should one/each parent pay?
- Will care of the child be awarded to one parent (sole care)?
- Will care of the child be awarded to both parents (joint care)?
- If one parent is not awarded care of the child, how much contact should they have with the child?
The Children’s Act of South Africa is the legal outline that includes the important aspects of children’s’ rights when their parents are getting a divorce. If a child is a minor (under the age of 18), this means that they do not have legal rights in any capacity without authorisation from their legal guardian or parent (unless they have been emancipated).
Although the parental custody of children takes into consideration the legal rights of the children, they cannot choose which parent they would like to live with before the age of 18. However, the court will listen to the children’s testimonies and take these into consideration when awarding custody to one of the parents.
Of course, the extent to which the testimony is taken into consideration depends on the age of the child – an infant would not be able to provide testimony, and the testimony of a 6 year old may not be as relevant as the testimony of a 17 year old (who is still a minor until they turn 18).
Why can’t a child choose who they want to live with?
According to the Children’s Protection Act of South Africa, no child (under the age of 18) can choose which parent they want to live with as their judgement may be skewed. For example, one parent may buy the child toys and sweets, but they may not be the best parent to provide to protection and nurturing that the child may need.
How does the court decide which parent should have custody of a minor (under 18)?
Each situation is unique, but there are a number of determining factors the court will take into consideration to decide which parent (or if both) should have primary custody of the minor. Once the child is 18 years old or over, they are of the age of majority and have the right to choose for themselves.
The factors taken into account include (but are not limited to):
- The child’s age
- The child’s sex
- The amount of contact the child has had with each parent throughout their life.
- The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents).
- The child’s own testimony.
- The child’s sense of being wanted and being kept secure.
- The emotional, physical, moral, and religious well-being of the child.
- The accommodation and environment each parent is able to offer for the child, including the educational facilities available.
How do joint custody and sole custody work?
In many cases, the court will award joint custody, meaning that both parents may have the child live with him or her throughout the year. The child will not live with both parents unless the court deems this to be in the best interests of the minor.
If sole custody is awarded to one parent, this means that the parent who does not have custody of the child will not have any rights to have the child live with them while the child is a minor. Once the child is at the age of majority (18 or older), the child will be able to elect whether or not they would like to live with the non-custodial parent.
To summarise: until a child is 18 years or older, they are considered a minor and are not able to elect which parent they would like to live with in the event of a divorce. However, the court does take into consideration the needs of the child as well as their own personal testimony if they are able to give one.