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    When it comes to divorce, children are often stuck in the middle of their parent’s dispute and suffer for it. The constitutional court states that in all matters concerning the child, the best interests of the children are of utmost importance. What this means is that the court will take into account a multitude of factors from the relationship the parents have to the capacity of the parents to care for the child in order to best determine what is in their best interest. The Children’s act also includes the right of the children to participate in any discussions or decisions that involve them.

    The following are some of the more common factors the courts take into account when considering the best interests of the child:

    • The nature of the personal relationship between children and their parents
    • The attitude of the parents or specific parents towards:
      • the child
      • parental responsibilities
    • The capacity of the parents, or a specific parent, or any other caregiver or relevant person to provide for the needs of the child, including emotional and intellectual needs.
    • The children’s:
      • age, maturity, and stage of development;
      • gender;
      • background; an
      • 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 children might have.
    • Violence involving the child or a family member


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    Parental rights

    Parental rights and responsibilities is the term used for the rights a parent may have in respect to their children. This includes guardianship, care, contact, health, and maintenance. More than one person may have parental rights and responsibilities, the court has the power to award parental responsibility to those that do not have a biological or legal relationship with the child. A person who has the rights and responsibilities must always act in a way that represents the best interests of the child while also considering what the child wants.

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    When the Children’s Act was implemented they changed the term custody to the concept of care, the act states that care involves there following (where applicable):

    • Providing a suitable living environment and conditions
    • Necessary financial support
    • Protection from mistreatment, abuse and neglect
    • Guiding the child in the behaviours and directions
    • Ensuring provisions for any disabilities or illnesses
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    Guardianship may be awarded to more than one person, children may have more than one guardian. Guardians do not necessarily have custody or the rights and responsibilities of a parent in terms of care and contact towards the child. A guardian has the right and responsibilty to:

    • Safeguard the child and their best interests
    • Assist the child in legal or contractual matters
    • Give or refuse consent

    Depending on the judge or court the levels of guardianship may be different, it is up to the court to exercise their power in how they best see fit.

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    Your children are always the most important part of your life and you will want to make sure they are impacted as little as possible by your divorce. Some couples may decide to stay together for their children but this can often lead to problems with children living in an unloving and unhappy household, you will need to make hard decisions to ensure your children can be happy as well as yourself.

    If you have any questions, please feel free to get in touch with us and we will happily assist you.


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