Divorce and Children

Custody of Children during a Divorce

You can have interim custody (care) of your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.

Interim custody (care) refers to care during the divorce proceedings and until a final divorce order is granted. Since the inception of the Children’s Act, the concept of “custody” has been replaced with the concept of “care”. However, the term “custody,” still widely used in our spoken language.

The Court is generally unwilling to upset the status quo about the custody (care) of minor children. The principle of preserving the status quo is, however, subject to considerations. This means that the interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.

The Court may refer an application for interim custody to the Family Advocate for investigation.

Access to Children during a Divorce

You can have interim access (contact) to your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.
Interim access refers to access (contact) during the divorce proceedings and until a final decree of divorce is granted.
In general, it’s regarded to be in children’s best interest to have as much contact as possible with their parents.
There are however various psychological and developmental factors which must be taken into account when determining how much contact is in the best interest of any particular child.
The amount of contact granted to a parent is also not always indicative of that parent’s ability or inability to care for a child. It may simply be that the awarding of more contact is not practical in a set of circumstances or that a specific child requires a less complex routine with fewer interruptions.
The Court is generally unwilling to upset the status quo concerning the access (contact) of minor children. The principle of preserving the status quo is, however, subject to considerations that the paramount interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.
Since the inception of the Children’s Act, the previous concept of “access” has been replaced with the concept of “contact”. Contact can be in the form of visitation, telephonic contact or contact through other forms of communication, including SMS, WhatsApp and skype.
The Court may refer an application for interim contact to the Family Advocate for investigation.

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