I am getting divorced, who will get care of my children?

Traditionally, care of the children was awarded to the mother, unless there were extraordinary factors dictating otherwise.  Parental roles have changed, however, and in certain circumstances the law recognises that parties have co-parental rights and responsibilities.

Generally, the arrangements that are made in respect of care and contact will depend on whether or not you and your former spouse can reach agreement, and then whether or not the court approves said arrangement.  If the parents are not able to agree, the court will then have to make the final decision with a view to the best interests of the children.

What is a parenting plan?

The Children's Act, 38 of 2005 states that “the co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.  If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”  The parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

The Act further states that, when preparing a parenting plan, the parties may seek the assistance of a suitably qualified person.  The court will still need to ratify a parenting plan, and it will do so with the best interests of the child / children in mind.  Parenting plans do not only concern care.  A parenting plan may determine any matter in connection with parental responsibilities and rights, including where and with whom the child is to live, the maintenance of the child, contact between the child and any of the parties / any other person, and the education and religious upbringing of the child.

If co-holders of parental rights cannot agree on a parenting plan, then the matter will need to be decided by the court.  The court, however, does not look favourably upon co-holders who do not make every attempt to reach an agreement out of court first, hence the Act refers to seeking the assistance of a family advocate, social worker or psychologist, or mediation.

What recourse do I have if I am denied contact to my child / children?

If the other parent / guardian denies you contact to your child / children in accordance with the Children’s Act, or if any other right in the Children's Act has been infringed or threatened, you can approach a competent court for the appropriate relief, including a declaration of rights.

Any one of the following persons, with good cause, may approach a court on this basis:

• a child who is affected by or involved in the matter to be adjudicated;
• anyone acting in the interest of the child or on behalf of another person who cannot act in their own name;
• anyone acting as a member of, or in the interest of, a group or class of persons; and
• anyone acting in the public interest.

What happens if my ex and I share care, but he/she removes my child from my care without my consent?

If you and your ex share care, but he/she removes your child from your care without your consent, there are a few options which you can consider.  One is approaching the South African Police Service, and another is lodging an (urgent) application in court.  That being said, the correct course of action is often dependent on the facts of each situation and the severity of the matter.

South Africa is a signatory to The Hague Convention, which provides that, if a parent removes a child from hisher habitual place of residence without the other parent's consent (where such consent is required), then the country to which the child has been removed must immediately return that child to hisher country of habitual residence.  This is only applicable in circumstances where both countries are signatories to The Hague Convention.  One of the very few exceptions to this rule, however, is that if a child has become settled in hisher environment, then the court is not obliged to return the child.