A child’s place of primary residence must be established where shared parenting is not an option for divorced parents. When making this decision, the following must be taken into account: which parent prepares and plans meals; baths, grooms and dresses the child; cleans and cares for school clothes; takes the child to the doctor; arranges social activities; puts the child to bed, gets the child ready for school; and provides discipline.

When children express their own desires with regard to their living arrangements, it often ‘throws a spanner in the works’. The Children’s Act 38 of 2005 does not provide for the specific age at which a child’s views will be considered, however it does state that a child of adequate age, development, maturity and intellectual capabilities should have his/her views, wishes and preferences as to where they ought to live, considered. Thus each case will be dependent on the particular circumstances and the personal competencies of the child concerned. The relevant factors looked at when assessing a child’s competency includes cognitive ability; biological and mental age; level of maturity in comparison to peers; ability to understand, comprehend and answer questions; and grades achieved in school.

In cases where siblings are involved, the recognised principle of our law is that it is desirable to keep siblings together and thus to maintain the status quo. However in instances where children express their wishes, daughters generally prefer to live with their mother and sons may prefer to live with their father. The reorganisation of a family structure upon divorce is often very stressful for a child, therefore where no preference is shown by the child, it is desirable to keep the siblings together and have them live with one parent or in terms of a shared residency plan. When a court has to decide which parent is better able to promote and ensure a child’s welfare, it will look at the following factors or criteria:

  • ‘The love, affection and other emotional ties that exist between parent and child, and the parent’s compatibility with the child.
  • The capabilities, character and temperament of the parent, and the impact thereof on the child’s needs and desires.
  • The ability of the parent to communicate with the child and the parent’s insight, understanding of and sensitivity to the child’s feelings.
  • The capacity and disposition of the parent to give the child the guidance he/she requires.
  • The ability of the parent to provide for the basic physical needs of the child.
  • The ability of the parent to provide for the educational well-being and security of the child.
  • The ability of the parent to provide for the child’s emotional, psychological, cultural and environmental development.
  • The mental and physical health and moral fitness of the parent.
  • The stability or otherwise of the child’s existing environment, with regard to the desirability of maintaining the status quo.
  • The desirability or otherwise of keeping siblings together.
  • The child’s preference, if the court is satisfied that in the particular circumstances the child’s preference should be taken into consideration.
  • The desirability or otherwise of applying the doctrine of same-sex matching, i.e. keeping sons with fathers and daughters with mothers.
  • Any other factor that is relevant to the particular case with which the court is concerned.’

Whether or not a child’s view will be considered is determined by the Office of the Family Advocate, who acts as an adviser to the court and as a mediator between families and the court. Once the child and the parents have been assessed, certain recommendations will be made to the court to provide assistance in deciding the case.

Please contact our offices should you require further assistance/information 041-373 9693


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