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Divorce and joint decisions in respect of minor children

Even though a man/woman is born with the right of guardianship over his/her children, it would be wise in a divorce settlement agreement to specifically state that he/she has the right of guardianship and contact.

I would insist on the following clauses being inserted in a consent paper:

The Plaintiff and Defendant shall make joint decisions with regard to issues of a material nature relative to the child’s upbringing including but not limited to the nature and type of schooling they should attend; the education they should receive; tertiary education; extra lessons and/or schooling; after school care; extramural activities; sporting and recreational activities and any medical treatment other than emergency treatment the children require, regard being had at all times to the best interest of the child”.

Very often after a divorce the party who has care over the minor child has moved on in his/her life and does not want the other parent to play a role in the upbringing of the child, specifically when it comes to schooling and all related activities. It is important that the parents take into account what the best interests of the children are. It is important for a child to have a good relationship with both parents, even if they are not staying together under the same roof. The more involved parents are in their children’s lives, and the more interest they show, the better the child will perform at school.

Even though the parents are divorced they should both have a say into what school the child attends for example. It is specifically relevant to the party who is paying maintenance to the other party, as it is relevant to him/her for example if the child goes to an expensive school which costs R4000.00 a month or a school that costs R1000.00 per month.

It is important also that the parties communicate relating to medical issues of the minor child. Sometimes this is however not possible, for example in a situation where a child may have sustained a serious injury and needs to be rushed off to hospital.

The aim of the new legislature in our law is to allow parents to be equally involved in a child’s life, except in a situation where this may not be possible due to substance abuse.

I, as an attorney, very much encourage parties in a divorce to try and agree on co-guardianship, even though this is not always possible.

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