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How care is decided?

The courts will always consider the welfare of the child before deciding who is awarded care of the child. Indeed, the interests, rights or wishes of the parents will be regarded as being of secondary importance.

If there is agreement between the parties, the judge will make a parenting plan an order of court at the same time that a decree of divorce is granted.

If there is a dispute over who is going to be awarded care, the judge may delay making an order at the divorce hearing until he or she has received sufficient evidence to decide what arrangements will be in the best interests of the children. Evidence may be given by the family advocate, doctors, relatives or friends of the family, all of whom may be cross-examined on their evidence.

If the court considers that it does not have enough information on which to make a decision, it may ask the office of the Family Advocate to compile a report on both parties and the sort of home that each is able to offer. If the court does not make such a ruling, either party may ask the judge to request a report from the office of the Family Advocate if it is believed that this will resolve a possible deadlock.

The Children’s Act has also introduced the idea of considering the views of the child in order to decide who will be awarded care. If the child is of an age, maturity and stage of development then that child will be given the right to participate in any matters concerning the care of that child. The child's views must be given due consideration.

In some circumstances a child may be able to bring their own matter to court, where one of the parents or a third party (curator) can act as a guardian and represent the child on his/her behalf.

The ability of one parent to provide the children with a better standard of living than the other will not be taken into account unless the various other considerations are evenly balanced.

The sole criterion is whether care would be in the child's best interest.


How Care Is Decided - Child Custody Attorney South Africa