When parents separate or divorce, one of the most important questions is how their decisions will affect their children. Where will the children live? How will they maintain relationships with both parents? What arrangements will best support their emotional wellbeing, education, safety and development?
In South Africa, the best interests of the child are of paramount importance in every matter concerning the child. This principle is recognised in section 28(2) of the Constitution of the Republic of South Africa and is further addressed in the Children’s Act 38 of 2005.
For parents going through divorce or separation, understanding this principle is essential when making decisions about parental responsibilities and rights, care and contact, parenting plans, maintenance and relocation.
As a family law attorney and mediator in Randburg, I assist parents in exploring practical, child-focused ways of resolving family disputes while keeping their children’s needs at the centre of the process.
1. What Does “Best Interests of the Child” Mean?
The best-interests principle requires that decisions affecting a child give proper consideration to the child’s individual circumstances, needs, rights and welfare.
There is no single arrangement that is automatically best for every child. What works for one family may not be suitable for another. The child’s age, developmental stage, relationships, safety, schooling and particular needs must all be considered.
Section 7 of the Children’s Act 38 of 2005 identifies factors relevant to determining a child’s best interests. These include:
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The nature of the child’s relationship with each parent and other significant people in the child’s life.
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The attitude of each parent towards the child and towards the exercise of parental responsibilities and rights.
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Each parent’s capacity to provide for the child’s needs, including emotional, intellectual, physical and social development.
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The likely effect on the child of a change in circumstances, including changes to living arrangements, schooling and relationships.
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The child’s age, maturity, developmental stage, gender, background and any relevant characteristics.
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The child’s physical and emotional security and intellectual, emotional, social and cultural development.
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The need for the child to remain in the care of a parent or family member where appropriate.
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The child’s need to maintain a meaningful relationship with both parents, where this is consistent with the child’s best interests and safety.
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The child’s views, taking account of the child’s age, maturity and developmental stage.
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Any relevant physical or emotional harm, including exposure to violence, abuse, neglect or family conflict.
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The practical challenges and potential consequences of separating the child from a parent, sibling or another significant person.
These factors are considered in context. The list is not exhaustive, and no single factor necessarily determines the outcome.
2. How Does the Principle Apply During Divorce?
Divorce can bring significant changes to a child’s daily life. Decisions about living arrangements, parental involvement and financial support should be made with careful consideration of the child’s needs.
Care and Contact Arrangements
Parents need to consider where their children will live, how time will be shared and how the children will maintain meaningful relationships with each parent.
The appropriate arrangement depends on the family’s circumstances. Equal time with each parent is not automatically in every child’s best interests, nor is one particular arrangement suitable for all families.
The child’s age, schooling, existing routine, relationship with each parent, safety and practical needs should inform the decision.
Where there are concerns about abuse, violence, neglect or other risks, the child’s safety must be given appropriate consideration.
Parenting Plans
A parenting plan can help parents establish clear arrangements for their children after separation or divorce.
Depending on the family’s needs, a parenting plan may address:
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Where the children will live and how care will be shared.
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Contact arrangements during the week, weekends and school holidays.
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Transportation and handover arrangements.
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Schooling, extracurricular activities and medical decisions.
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Communication between parents and between each parent and the children.
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How parents will deal with future disagreements.
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How arrangements may be reviewed as the children grow and their needs change.
A well-considered parenting plan can reduce uncertainty, establish predictable routines and help parents focus on their children rather than continuing conflict.
Learn more about parenting plans and how they can assist separated parents.
Child Maintenance
Both parents have a legal duty to support their children according to the applicable law and their respective means.
Child maintenance arrangements should take account of the children’s reasonable needs, including accommodation, food, clothing, education, medical expenses, transport and other appropriate costs.
The parents’ respective financial circumstances and the children’s needs are important considerations when determining appropriate contributions.
Financial disagreements should not be allowed to obscure the importance of providing for the children’s needs.
Relocation and Changes in Schooling
A proposed move to another city or country can significantly affect a child’s routine and relationship with the other parent.
Relevant considerations may include the reasons for the proposed relocation, the child’s existing relationships, educational opportunities, emotional security, practical contact arrangements and the likely effect of the move on the child.
Parents should consider the legal implications before making major unilateral changes to a child’s living arrangements. Where agreement cannot be reached, legal advice may be necessary.
Education and Medical Decisions
Decisions about schooling, medical treatment, therapy and other important aspects of a child’s development should be approached responsibly.
Parents should consider the child’s individual needs, the consequences of the proposed decision and the applicable allocation of parental responsibilities and rights.
Where parents disagree, the focus should remain on the child’s welfare rather than on which parent prevails in the dispute.
3. Should a Child’s Views Be Taken Into Account?
Children are not simply passive participants in decisions that affect their lives.
Section 10 of the Children’s Act recognises that every child who is of an age, maturity and stage of development to participate in a matter concerning that child has the right to participate appropriately, and that the child’s views must be given due consideration.
The weight given to a child’s views depends on the circumstances, including the child’s age and maturity. A child should not be placed under pressure to choose between parents or made to feel responsible for the outcome of a dispute.
The purpose is to ensure that the child’s perspective is appropriately considered while protecting the child from unnecessary emotional pressure.
4. What Role Does Mediation Play in Protecting Children?
Divorce mediation provides parents with a structured opportunity to discuss difficult issues and explore mutually acceptable solutions with the assistance of an impartial mediator.
Rather than concentrating exclusively on competing legal positions, mediation can help parents focus on the practical arrangements their children need.
Mediation may assist parents to:
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Develop workable care and contact arrangements.
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Prepare or revise a parenting plan.
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Discuss school holidays, transportation and communication.
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Address disagreements about schooling and other child-related decisions.
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Consider appropriate financial arrangements for their children.
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Establish constructive ways to resolve future disputes.
Mediation is not suitable for every situation. Where there are concerns about domestic violence, coercion, abuse, intimidation or an imbalance of power, the suitability and safety of mediation must be carefully assessed. Appropriate safeguards and alternative legal processes may be necessary.
Where mediation is appropriate, a child-focused approach can help parents work towards arrangements that support stability, cooperation and the children’s long-term welfare.
Read more about divorce mediation in Randburg.
5. What Happens if Parents Cannot Agree?
Parents may not always agree about what is best for their children. Disputes can arise about care, contact, schooling, relocation, maintenance or the exercise of parental responsibilities and rights.
Depending on the circumstances, parents may seek assistance through mediation, appropriate family services or legal proceedings.
A court determining a matter concerning a child must consider the applicable law and the child’s best interests. The outcome depends on the evidence, the particular circumstances and the legal issues before the court.
Parents should obtain appropriate legal advice where a dispute affects a child’s safety, stability or important rights.
Frequently Asked Questions
Is the best interests of the child the most important consideration in South African law?
Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. The principle must be applied in accordance with the relevant law and the circumstances of the particular matter.
Does the law automatically favour the mother or the father?
The best-interests principle does not automatically favour either parent because of their gender. Decisions must be based on the relevant circumstances, the applicable law and the child’s needs.
Does a child have to spend equal time with both parents?
No. Equal time is not an automatic legal requirement. Care and contact arrangements should be determined with reference to the child’s best interests, practical circumstances, relationships and safety.
Can parents agree on their own parenting arrangements?
Parents can negotiate arrangements, including with the assistance of a mediator. A parenting plan should address the children’s needs and comply with applicable legal requirements. Depending on the circumstances, formalisation or registration of the plan may be appropriate.
What if one parent wants to relocate with the children?
Relocation may have significant consequences for the children and the other parent’s involvement. The legal position depends on the circumstances, including the existing parental responsibilities and rights and any applicable court order or agreement. Obtain legal advice before making a major unilateral change.
Can mediation help when parents disagree about their children?
Mediation may help parents communicate, identify the issues in dispute and explore practical arrangements. Its suitability must be assessed in each case, particularly where there are concerns about abuse, intimidation, coercion or safety.
Putting Your Children First During Divorce
Separation and divorce can be difficult for the entire family, but careful planning and appropriate support can help parents make informed decisions about their children’s future.
The best-interests principle is not simply a phrase to include in a parenting plan. It requires parents to consider their children’s individual needs, emotional security, development and relationships when making important decisions.
Where possible and appropriate, constructive communication and child-focused dispute resolution can help parents establish arrangements that support their children through family changes.
Need assistance with a parenting plan or divorce mediation?
Nicki Macartney is a family law attorney and mediator based in Randburg, assisting clients with divorce mediation, parenting plans and family law disputes.
Visit Divorce Mediation Randburg to learn more about the services available, or contact the practice to discuss your circumstances.
You can also book a consultation online.
This article provides general information about South African law and is not a substitute for legal advice on an individual matter.
