Children and Divorce
Caring most for those with the least say
Your important questions answered
There are many questions concerning the awarding of primary residence and maintenance in a divorce scenario. Over the last couple of years with have seen tremendous strides being made in the shared contact arena. If the parties are able to effectively co-parent, even though their marriage may not have been successful, but they are willing to jointly fully focus on the best interest if their children, then one is able to successfully incorporate a structure of shared residency. There are of course various other factors which an expert, or a presiding officer will take into account. The topic of your child’s residency remains undoubtedly the most important but emotionally sensitive area of agreement in the breakup of any family. We attempt to help you understand the parameters of your rights towards contact and care, together with your associated parental responsibilities and rights.
How do the courts determine what is in the best interest of a child?
There are indeed couples who stay together for many years in a loveless marriage for the sake of their children, although this could be considered as admirable as the individual as forsaken his/her own needs, it may well have a further and exacerbated detrimental effect on your child’s phycological state of mind. Those who however decide to divorce should first and hopefully jointly consider what is in the best interest of their children. This can be achieved amicably, and the parameters can be well maintained and documented in a settlement agreement. On the other hand, our courts base their decision on the best interest of the minor child on a host of factors, such as:
- The nature of the personal relationship between the child and their parents
- The attitude of the specific parent towards their child and their parental responsibilities
- The capacity of the parents, or a specific parent, to provide for the needs of the child, including their emotional and intellectual needs.
- The child’s:
- age, maturity, and stage of development;
- gender;
- background; and any other relevant characteristics.
- The child’s physical and emotional security, as well as his/her intellectual, emotional, social and cultural development.
- Any chronic illness or disability the child might have.
- Physical and emotional violence that may have been perpetrated against the child.
If the parties are unable to come to an agreement on the residency of their child, one has to then obtain an assessment report from an expert in his/her field. We refer to these reports as a psycho-legal assessment which culminates in a written report, conducted by a Psychologist or a Social Worker. We accept that you may perhaps know what is in the best interest of your child, fortunately we work closely with various experts in their fields and if the dispute remain, we are here to assist and to ensure that you receive the best possible advice. Your child’s future should never be compromised.
What rights do the parents have in a divorce situation?
Strictly speaking, both parents have a right to maintain contact with their children and a responsibility to look after their needs, always acting in a way that represents the best interests of the child. If a transgression has taken place against the most vulnerable, it remains our duty as a legal officer of the court to assist and to ensure that the child is immediately placed in circumstances where he/she is safe. We have attended to numerous urgent applications where the wellbeing of a child is in question. In terms of such an urgent application one can be in Court within a matter of minutes in order to obtain the appropriate relief. The High Court remains the upper guardian of all minor children and they have an ultimate discretion when the wellbeing of child is being challenged.
Why do I need a Divorce Attorney in securing the best interest of my child?
Unfortunately, this area of our law is complicated, the courts adopt a multifaceted approach and there are various intricate factors which have to be investigated and considered. Ultimately you want an attorney who has extensive experience in all aspects involving minor children. This is what we do, our expertise will assist and guide you in times when you are at your most vulnerable and susceptible to outside influence, such as friends and family. Only once you have received sound legal advice will you be in a position to carry out informed decisions.
We are also able to assist in the following areas involving your minor child:
- Parenting plans
- International relocation application with you and your minor child
- Cross border child abduction
- Urgent applications surrounding the wellbeing of your child
- Reconsideration of your current contact and care regime
- Securing parental responsibilities and rights of unmarried fathers
- Review and increase of your current maintenance regime
- Interim applications whilst your divorce is ongoing
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