Chapter 12 - The interests of the children of divorcing parents

Question 1

The best interests of a child

Answer 1

1. The nature of the personal relationship between the child and his or her parents
2. The attitude of the parents towards the child and the exercise of parental responsibilities
3. The capacity of the parents to provide for the child’s needs.
4. The likely effect of any change in the child’s circumstances would have on the child
5. The practical difficulty and expense of the child having contact with his or her parents
6. The child’s need to remain in the care of his or her parents
7. The age, maturity, stage of development, gender, background and any other relevant characteristic of the child.
8. The child’s physical and emotional security.
9. Any disability the child may have

10 Any chronic illness from which the child may suffer

11. The child’s need to be brought up in a stable family
12. The need to protect the child from physical and psychological harm.

13 Any family violence involving the child

14. Which action or decision would avoid or minimise further legal or administrative proceedings regarding the child

Question 2

The mediation in certain Divorce Matters Act 24 of 1987

Answer 2

A Family advocate ought to apply for an order authorising an enquiry if one of the following situations was envisaged:

1. Care of a young child will not be awarded to the child’s mother
2. Siblings will be separated
3. Care will be given to a person other than the child’s parent

4 An agreement regarding care or contact will be made which is prima facie not in the interest of the child

Question 3

The Divorce Act 70 of 1979 s6(1)

Answer 3

The court may not grant a decree of divorce until it is satisfied that the arrangements made or contemplated with regard to the welfare of any minor or dependent child are satisfactory.

Question 4

The Divorce Act 70 of 1979 s6(2)

Answer 4

The Divorce Act empowers the court to cause any investigation it deems necessary to be carried out and to order any person to appear before it.

Question 5

The Divorce Act 70 of 1979 s6(3)

Answer 5

Provides that once the court has considered the family advocate’s support and recommendations and is satisfied that the arrangements made or contemplated with regard to the welfare of the child are satisfactory

Question 6

The Divorce Act 70 of 1979 s6(4)

Answer 6

Another way in which the child’s views can be conveyed is by having a legal representative appointed for the child and having the parents of the child pay for the legal representation.