Sole custody: can you just get it?
It must be remembered that what you see on TV isn’t necessarily real life. Firstly, what you see on TV and the movies is often sensationalized, not to mention, may have application of other laws that do not necessarily work the same in South Africa.
In South Africa we regard the best interests of children as paramount to almost everything else in a custody dispute. This means that your personal gripes against your spouse or the other parent are not necessarily the most important thing. Of course, abusive situations (or substance abuse) should always be brought to the attention of the police, the Courts as well as your attorney and the Family Advocate. However, in the general course of events a child should not be punished due to his or her parents divorce or the personal vendetta’s they may have with each other.
Unless an abusive (or substance abuse) problems are involved, usually the child should enjoy access to both parents. Of course, also maintenance and contributions to their welfare, from both parents. Maintenance of a child will be determined by the child’s needs as well as the parents ability to pay. Your attorney should discuss this with you at length at consultation.
One parent can’t get away from paying maintenance by saying he or she doesn’t want to see the children and therefore, doesn’t have to pay maintenance. Conversely, should you not be able to see your children as often as you would like, this doesn’t entitle you to with-hold maintenance. Furthermore, should you be unable to pay maintenance or the amount of maintenance Ordered, this should not mean that you don’t get to see your children. It is not a pay as you go system!
When parties are married, their prenuptial agreement is of paramount importance in determining the way the estate will be divided, who may be saddled with what debts as well as assets. Please see our blog on prenuptial agreements at https://www.hamelattorneys.co.za/pre-nups-what-to-consider/ for more information.
Parties may also agree at any time to a Settlement Agreement which encompasses debts, assets and maintenance and the attorneys will then request that the Court make this Settlement an Order of Court. For more information about Opposed or Unopposed Divorces please see our blogs at https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/ and https://www.hamelattorneys.co.za/divorce-when-is-it-unopposed/
Whenever care and custody/visitation rights and access to children cannot be agreed upon, the matter should be referred to the Family Advocate. Also, when certain allegations of abuse or substance abuse is averred by one or both of the parties, the Family Advocate may investigate even when the parties have agreed, in order to make sure that the children’s best interests are met with the Settlement Agreement. Please note the Family Advocate merely investigates care and contact with children. It does not involve itself with maintenance matters. Maintenance matters should either be Agreed upon between the parties or referred to Court for adjudication. For more information on the Family Advocate please see our blog at https://www.hamelattorneys.co.za/family-advocate-who-are-they-and-what-do-they-do/
In a nutshell then, it must be realized that children are not meant to be pawns in a divorce or break-up. Their needs and their need to have access to both parents must always be borne in mind. Of course, circumstances revolving around abuse or substance abuse may lead to one parent having limited (or no) access to their child. Usually, when access rights are restricted they would be in effect until circumstances change or the parent with the problem has completed rehabilitation satisfactorily or attended and obtained a satisfactory bill of psychological health from a social worker or similarly qualified person such as a Psychiatrist/ Psychologist.
Contact us today to set up your consultation and know your rights! https://www.hamelattorneys.co.za/contact/