Divorce is a turbulent time for any person involved in divorce. No matter how mutual and placid the divorce may be, it is still a time of change and uncertainty for the future. It is even more complicated for the children. They do not always fully understand or understand anything at all, and that is a very large life event for them. That is why it is of the utmost importance that you partner with divorce attorneys or divorce lawyers that understands the child’s role in divorce. Thankfully, the South African constitution is one of the best human rights constitutions in the world. This is inclusive of the Children’s Act, that has been designed to provide a number of rights for children and to protect those rights.
One of the most important aspects of the Children’s Act in South Africa relates to a minor’s rights when his or her parents are getting a divorce. Before the age of 18, no child is allowed to have any legal rights without the authorisation of a parent or legal guardian unless they have been emancipated. This means that the way in which custody is handled in a divorce situation must take into consideration the rights of the child.
Custody Disputes
Contested custody disputes may arise between the parents when they are going through a divorce. This can be for many reasons, and that depends on the unique family dynamic and the family needs. The first step in resolving this issue is to identify whether or not the father has paternal rights and responsibilities. A family advocate or a social worker will get involved to perform mediation as the neutral party. Mediation is the process where all involved parties will sit together with the neutral party and discuss each side’s argument. This mediation process is there to work through each issue and develop options and alternatives so that each party may find common ground and reach an agreement.
There are several possible outcomes of such a mediation:
- the parties cannot agree on whether or not the father meets the criteria;
- the parties agree that the father does not meet the criteria and the mother is not prepared to grant him any parental responsibilities and rights;
- the parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental responsibilities and rights by means of parental responsibilities and rights agreement;
- the parties agree that the father has parental responsibilities and rights and agree on a parenting plan; or
- the parties agree that the father has parental responsibilities and rights but cannot agree on a parenting plan.
If an agreement is not made through the mediation process, the advocate will issue a statement transcribing the outcome of the mediation. The parties may then approach the Court for adjudication of the issues. If the matter is brought to the court, the court will usually refer the matter to the family advocate for investigation.
If the parties reach an agreement that the father does not satisfy the criteria, they may still agree to enter into parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.
If either party does not attend the mediation, the family advocate will issue a confirmation of non-attendance and an aggrieved party can lodge an application to the court.
Divorce is never a pleasant experience, especially if there are children involved. It is advisable to allow this process to be fair and timely in order to save all the involved parties delayed heartache and continuous conflict. Dreyer Engelbrecht Attorneys understands this and our divorce lawyers and divorce attorneys are ready to assist you in making your divorce a fair one on all the parties involved, especially the children.
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