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i want to divorce my husband, i want to know what my rights…

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i want to divorce my...
i want to divorce my husband, i want to know what my rights are as a mother to my two yea old son. how does custody work.
Submitted: 6 years ago.Category: Family Law
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Answered in 6 hours by:
2/25/2012
Family Lawyer: J W Fourie Attorneys, Lawyer replied 6 years ago
J W Fourie Attorneys
Category: Family Law
Satisfied Customers: 15,603
Experience: L.LB,
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Good day.

Your rights is set out in section 18 and 19 of the Childrens Act.

 

18. Parental responsibilities and rights.—(1) A person may have either full or specific parental responsibilities and rights in respect of a child.

(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—

(a)to care for the child;

(b)to maintain contact with the child;

(c)to act as guardian of the child; and

(d)to contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—

(a)administer and safeguard the child’s property and property interests;

(b)assist or represent the child in administrative, contractual and other legal matters; or

(c)give or refuse any consent required by law in respect of the child, including—

(i)consent to the child’s marriage;

(ii)consent to the child’s adoption;

(iii)consent to the child’s departure or removal from the Republic;

(iv)consent to the child’s application for a passport; and

(v)consent to the alienation or encumbrance of any immovable property of the child.

(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).

 

19. Parental responsibilities and rights of mothers.—(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

(2) If—

(a)the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and

(b)the biological father of the child does not have guardianship in respect of the child,

the guardian of the child’s biological mother is also the guardian of the child.

(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

 

How custody works is that, during the divorce proceedings, your husband and you will present reasons to the court to explain why either of you should have custody over the child. The court will then make a decision based on the best interest of the child standard. That standard is measured based on the following facts.

 

7. Best interests of child standard.—(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—

(a)the nature of the personal relationship between—

(i)the child and the parents, or any specific parent; and

(ii)the child and any other care-giver or person relevant in those circumstances;

(b)the attitude of the parents, or any specific parent, towards—

(i)the child; and

(ii)the exercise of parental responsibilities and rights in respect of the child;

(c)the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d)the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—

(i)both or either of the parents; or

(ii)any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e)the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

( f )the need for the child—

(i)to remain in the care of his or her parent, family and extended family; and

(ii)to maintain a connection with his or her family, extended family, culture or tradition;

(g)the child’s—

(i)age, maturity and stage of development;

(ii)gender;

(iii)background; and

(iv)any other relevant characteristics of the child;

(h)the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i)any disability that a child may have;

( j)any chronic illness from which a child may suffer;

(k)the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l)the need to protect the child from any physical or psychological harm that may be caused by—

(i)subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behavior; or

(ii)exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behavior towards another person;

(m)any family violence involving the child or a family member of the child; and

(n)which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.

(2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child.

 

Your child may also participate under certain circumstances:

 

61. Participation of children.—(1) The presiding officer in a matter before a children’s court must—
(a) allow a child involved in the matter to express a view and preference in the matter if the court finds that the child, given the child’s age, maturity and stage of development and any special needs that the child may have, is able to participate in the proceedings and the child chooses to do so;
(b) record the reasons if the court finds that the child is unable to participate in the proceedings or is unwilling to express a view or preference in the matter; and
(c) intervene in the questioning or cross-examination of a child if the court finds that this would be in the best interests of the child.
(2) A child who is a party or a witness in a matter before a children’s court must be questioned through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) if the court finds that this would be in the best interests of that child.
(3) The court—
(a) may, at the outset or at any time during the proceedings, order that the matter, or any issue in the matter, be disposed of separately and in the absence of the child, if it is in the best interests of the child; and
(b) must record the reasons for any order in terms of paragraph (a).

This basically means that if the court is satisfied that the child understands the proceedings and the consequences thereof and the child is speaking his own mind as supposed to repeating what he was told to say, the court will take the wishes of the child into consideration when deciding who should get custody.

 

Feel free to ask follow up questions.

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