Many a client advises me that their child wants to live with them and not their soon to be ex, and asks me how relevant that is, in a divorce matter. The reality of the matter is that these days the views of the minor child are taken into account when a court must make a decision on care and contact arrangements.
Section 10 of the Children’s Act 38 of 2005 came up recently in our case-law in the Eastern Cape decision of HG v CG 2010(3) SA 352. Section 10 of the Act states that if a child is of the age of maturity and has reached the necessary state of development in his/her life, then he or she can actively participate in any decisions which are made relating to him or her.
In the case of HG v CG the parties had four minor children and had been divorced. The settlement agreement stated that the parties had joint custody of the minor children and would spend an equal amount of time with them. In my experience this is becoming quite a popular way of settling custody matters these days.
However three years after the divorce the lady in the divorce brought an application to the court to have the terms of the divorce order changed. She wanted to be named the primary care provider of the children and also wanted authority to move with the children to Dubai to be with the man she wanted to marry.
Social workers and psychologists, giving evidence on behalf of the lady, testified in her favour that it would be in the childrens’ best interest that she be named primary care provider. The oldest child was now fourteen years old and the triplets were eleven.
However the man’s evidence from his own witnesses was that it would not be in the best interest of the children to relocate, and that they would miss their father and school friends in Port Elizabeth. This was good evidence.
In the end the court dismissed the application. The court found that the Children’s Act gives a child an opportunity to participate in decision- making affecting him.
In my opinion the court was quite correct in dismissing the application. Consideration has to be given to the views of the children. The children in this case were old and mature enough to give their own views. They wanted the status quo to be preserved of joint custody and didn’t want to relocate. The court accepted their views. The above case also goes to show how important it is when getting divorced to make the correct decisions on custody and contact rights. This however isn’t always possible in today’s society.
The new Children’s Act is quite correct in my opinion in taking into account the views of the children. The children are clearly the innocent victims in a divorce or separation situation and surely must have a say, provided of course that they are of the necessary maturity to do so.
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Mentally handicapped children & divorce
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