South Africa has been recognised as having one of the best human rights constitutions of any country in the world. The introduction of the Children’s Act in South Africa has further enhanced this reputation with a number of different provisions to provide and protect a number of rights for children living in the country.
Family Custody Arrangements
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.
A child cannot choose which parent they would like to live although the court must listen to and take into consideration the testimony of the child in question. The seriousness of the testimony and the judgement of the child is dependent on the age of the child. For example, an infant would not be able to provide testimony while the testimony of a minor aged 17 may be more relevant than a child aged 6 years old.
The reason that no child can choose which parent they want to live with according to the Children’s Protection Act in South Africa is because their judgement may be skewed. A child may choose to live with a parent because they buy the child sweets and toys. However, this parent may not provide the nurturing elements that are deemed necessary for the child to grow and prosper.
While the courts in South Africa will mainly award joint custody to both parents this does not mean that the child will live with both parents unless it is deemed in the best interests of the child to do so. This means that the child will spend part of a week, month or year with one parent and part of the year with the other parent. However, this is not a necessity of joint custody and in most cases the child will only domicile with one parent when joint custody is awarded.
On the other hand, where sole custody is awarded to one parent the non-custodial parent will lose their rights to have the child live with during any part of their youth. Visitation and access will not be lost by the non-custodial parent although the court and custodial parent will need to come to an agreement of the days and times that will be spent with the non-custodial parent. Sole custody is only granted in extreme cases where there is abuse, neglect, drug use etc. so visitation and access must be strictly controlled in these situations. A child care or social worker may be required to be present on visitation with the child to ensure that the child’s rights are protected according to the Children’s Act in South Africa.