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Primary Residence or Child Custody Law South Africa

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Published Date: September 10, 2020

A recently published report on Statistics SA has given insight into the divorce rate in South Africa; however, the report only reveals divorce rates up to the year 2018. The COVID-19 lockdown periods saw a significant (20%) increase in the number of divorce requests, while divorced and separated individuals struggled to navigate the blurred lines surrounding contact and care. “Child custody” is no longer a term used within the law, and has been replaced by the words “contact” and “primary residence”. ‘Contact’ refers to any type of engagement with the child, and ‘primary residence’ refers to the child’s main residence.

Divorce is difficult on all involved parties, but children are the ones who are most affected. While personal differences may arise, ultimately, everyone wants what is best for the child(ren). This is why a legal representative should be involved from the get-go, ensuring that the disputes are mediated fairly, so that amicable settlements can be reached which is in the child(ren)’s best interests.

Child Custody Laws for Both Parents

It is generally accepted that the mother will take on the role as primary caregiver, however, there can be a residency dispute between parties, and a trial and various investigations into the best interests of the child(ren) may determine which parent is the most fit to have full custody of the child(ren). This article will explain the basics around contact rights and primary residency options.

Parental Contact After Divorce

Child maintenance is the obligatory payment toward the child(ren)’s livelihood that each parent needs to contribute towards. However, should maintenance not be paid for whatever reason, a child cannot be withheld from either of their parents, unless said parent is abusive or deemed a danger to the child, or if contact to that parent would not be in the child’s best interests. The Children’s Act now gives fathers the same rights and responsibilities as mothers (unless a court determines otherwise). The Act also empowers children by giving them the right to maintain contact with both parents should they wish to.

A parenting plan will be created once the court’s divorce proceedings have been finalised; this plan will indicate who the child(ren) will be residing with, how much time each parent is allowed with the child(ren), and how major parental decisions (school, area of residence, etc) will be agreed upon.

Should a parenting plan be enforced by the court, or under legal obligations, transgressions can and will be treated as a criminal offence.

Divorced Parents’ Custody Options

Primary Residence

Should the father be awarded primary residence, the child(ren) will reside at the father’s house and he will take on the role as primary caregiver of them. Both parents can come up with a visitation plan so that the mother may visit / be visited by the child(ren). This will work vice versa for the mother.

Right to Contact

Should primary residence not be desired / awarded, the other parent may still visit the child(ren) as agreed upon by both parents.

Limited to No Contact

As mentioned, should there be a history of abuse or for any reason the child(ren) are in danger, or should contact not be deemed to be in the child’s best interests for whatsoever reason, the other parent will not have free access to his/her child(ren). Visits may be limited and supervised by another capable adult, after the parent in question has proven to the court that his/her abusive, negligent or dangerous behaviour has been resolved.

Adams and Adams has a litigation unit with extensive experience in dealing with family and matrimonial matters. Our team can act on behalf of both parties concerned in divorce proceedings. Contact us for further information and to speak to professional child custody lawyers.

How can we help you?

We have offices in Pretoria, Johannesburg, Cape Town, and Durban, please contact your nearest office for any legal enquiry or assistance.

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