Custody change after divorce

What happens when a child wants to live with their other parent?

What happens when a child of divorced parents expresses a preference to live with the (currently) non-custodial parent? As children grow, and their relationship with each parent develops, they may at some point decide they would like to go live with the other parent. Is this permissible? What process would the parent wanting custody change have to follow? There are a number of factors to consider.

Best interest of the child

First and foremost, the best interests of the child drive the court’s decision. While a child’s voice is heard, once they are of an age to express themselves rationally, the child’s preference is not the only influence on the case. But neither is the parent’s preference. Just because a parent (for the sake of example, let’s say the father) wants a custody change does not mean it is in the best interests of the child. Therefore the entire decision-making process is informed by the child’s best interest.

Which court handles the case?

The Children’s Court has the jurisdiction to hear and vary orders made from a higher court in terms of care and contact of minor children. This jurisdiction to vary a care and contact order – to effect a custody change – does not take away from the High Court’s inherent role as the upper guardian of all minors. But High Court litigation is expensive, so the Children’s Court is far more accessible to the majority of people in South Africa. The lower courts provide an “effective, speedy and inexpensive remedy” when there are disputes regarding care and contact. The parent can of course approach the High Court to vary the parenting plan put in place at the time of the divorce, but the fees will be higher. The Children’s  Court will not directly amend a higher court’s order, but it will allow the care and contact provisions to be amended, according to the provisions of the Children’s Act, in line with the best interests of the child.

What will the court consider?

The parent wishing to become the custodial parent will have to satisfy the court that two years have passed since the current divorce order was made and circumstances, especially the voice of the child, have changed. The child’s personal relationship with each parent will be considered. If the child is more inclined to live with their father, this likely indicates a better personal relationship with him, but not automatically. The attitude of each parent towards the child and the exercise of their parental rights and responsibilities will also be considered. Is the father willing to take over that right and subsequent responsibility? Does he have the capacity to provide for the physical, emotional and intellectual needs of the child? Children sometimes claim to want to live with the other parent because life is “more fun” or “easier” in that home, i.e., that parent exercises less discipline and the child has more freedom. This may not necessarily be in the best interests of the child. The court will want to be satisfied that the father can maintain a suitably responsible parenting environment for the child. A social worker’s assessment may be helpful in determining the nature of the relationship between parent and child and the attitude of the father regarding an appropriate upbringing. 

Is the mother willing to forgo her primary care rights? Does the father undertake to maintain relations with the mother’s side of the family? If so, the case is relatively straightforward (provided the court is satisfied on the above matters). If the mother does not agree with the move, the case will be more complex and is likely to involve a social worker’s assessment and recommendation. Are there siblings? While it is not unheard of for siblings to reside with different parents, the courts don’t like to separate siblings from one another and place great importance of the effects of the change in circumstances on the minor child. 

The child’s need to maintain a connection with both parents, the child’s age, maturity and background are all factors the court will consider. A child should grow up in the most stable and nurturing environment possible, and a balance needs to be struck between the parent’s rights and the child’s needs and preferences to ensure this happens. Any route that prevents further litigation is in the child’s best interest. Therefore, if the parents cannot agree on the new care and contact arrangements, mediation is strongly recommended before resorting to the courts.

Mitigating circumstances

This discussion assumes both parents are loving and caring and the only variable is the child’s preference to live with the other parent. However, the child may wish to move because they are being abused or neglected. For example, if the mother uses corporal punishment or keeps the child home from school, she may be guilty of failing to carry out her parental rights and responsibilities. The parental right and responsibility of “care” specifically calls for protecting the child from acts of maltreatment, neglect, abuse and any other form of harm. Section 45 of the Children’s Act gives the Children’s Court the power to adjudicate on matters involving care of a child, especially when it comes to abuse and neglect.

In this case the father could apply to the Children’s Court for an order suspending or terminating the mother’s parental rights and responsibilities in light of the abuse and neglect. If the mother opposes the application, an expert would be appointed to conduct an investigation and report into the best interests of the child and provide a written recommendation. This expert can be a private social worker or the offices of the Family Advocate. The court would be guided by the recommendations made by these experts when the parents present differing versions of reality to the court. 

Cape Town attorney can help

Would you like a custody change or to otherwise change the conditions of your parenting plan? SD Law can help. We are a firm of family attorneys in Cape Town and Johannesburg with deep experience of helping families in a variety of circumstances. We can review your care and contact arrangements and recommend an appropriate course of action for you. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Moving with children post-divorce? What you need to know.
• Child custody and guardianship in divorce
• Custody – the difficult question
• What is guardianship?

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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