When parents decide to divorce, one of the first things that they consider is the custody of their child. In terms of the Child Care Act, when it comes to child custody, the best interest of the child is of paramount importance. Especially when determining who the custodian parent should be.
While most parents may want sole or joint custody, they are often unclear about the different types of child custody and their legal implications. The different types of child custody include:
When a parent has sole custody, it means that he or she has exclusive "physical" and "legal" custody rights and responsibilities to the upbringing of the child.
The courts in South Africa are often reluctant to grant sole custody to one parent, because it is in the best interest of the child to have both his or her parents present and involved in the upbringing.
Sole custody is usually awarded when one parent is abusive towards the child or is an unfit parent. An example of an unfit parent would be a drug addict who is incapable of administering the caution necessary in the upbringing of a minor child. Unfit or abusive parents are still entitled to visitation rights, however, these visits are usually supervised.
Joint custody covers "physical custody" and "legal custody".
Joint physical custody refers to both parents having equal rights to their child living with them. The child spends an equal amount of time living in each parent's separate home.
With joint physical custody, both parents remain present in the child's life, and the child is able to experience the physical presence of both parents.
However, joint physical custody might not be in the best interest of the child, as it implies that the child will have two permanent homes, and this could lead to stress and disruption in a child's life. Joint physical custody may not be an option if the parents reside too far from each other.
Joint legal custody refers to both parents having equal rights to make decisions about the upbringing of the child.
The courts in South Africa are often of the opinion that joint legal custody should be awarded to both parents, thus granting both parents equal rights to make decisions about the child's general welfare.
Physical custody is, therefore, usually awarded to one parent, based on the best interest of the child. However, both parents can hold legal custody, while the mother is awarded primary physical custody.
In the past, the mother of the child was seen as the preferred caregiver or the parent who is most capable of raising a child.
However, it has recently been determined that "mothering" does not depend on the gender of the parent, and a father now has the equal responsibility of being the parent that cares for the child's emotional and physical well-being.
If you are in search of a Family Law Attorney who will ensure that your child's interest remains of paramount importance at all times, contact Van Deventer and Van Deventer Incorporated.
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