Matters of divorce and custody

Just after Christmas, I discovered a message on my husband’s cell phone that led me to believe he was having an affair with a work colleague. He admitted to the affair and told me that he wants a divorce. He moved out of our home two weeks ago, but demands access to our daughter (2½) despite not contributing towards her maintenance. What are the legal responsibilities of both parents in the case of a divorce?
In terms of the Child Care Act 38 of 2005 (“the Act”), the doctrine  of parental responsibilities and rights is defined as including “the responsibility and the right” to:
L care for the child;
L maintain contact with the child;
L act as his/her guardian; and
L contribute to the child’s maintenance.
“Care” replaces “custody” and “contact” replaces “access”.
Accordingly, both you and your husband have co-parental
rights and responsibilities to care for and maintain contact with your child, to act as their guardian and to contribute to
their maintenance.


My wife and I are currently in the process of divorcing and she has taken out a Domestic Violence order against me. As I have anger management issues, she has denied me access to our children as she says she does not trust me. I was told that my wife and I are co-parents to our children and that we have joint parental rights and responsibilities. Is my wife able to deny me access to my children?
Notwithstanding that the Act provides that parents have co-parental rights and an obligation to their children, each case is determined on its own merits. If there is a dispute between the co-parents as to each parent’s responsibilities and rights to the children, a court with jurisdiction will intervene and may request that the Family Advocate institute an enquiry and furnish the court with a report and recommendation on any matter concerning the welfare of each of the minor or dependent child ren of the marriage. The court has a broad discretion to determine what the best interests of the child require and will take into account a wide variety of factors, including economic, social, moral and religious considerations, the emotional needs of the child and their need for security.


My husband and I are getting divorced. We have two children (13 and 6) and both children have told me that they want nothing further to do with their father. Although I have conveyed this to him, their father still demands to see the children. From what age can a child have a say?
Although courts do not generally give much weight to the wishes of a child, they cannot be ignored, especially in respect of older children. A court will give weight to the wishes of a child subject to the child’s age, maturity and stage of development, but this is only but one of many other factors that a court will take into account in exercising its discretion regarding the best interests of the child. There is no specified age that a child will have a say and it is dependent on the factors referred to in Section 10 of the Act.

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