The Gauteng High Court, Pretoria has warned against the dangers of shared custody of children by divorcing parents, without the input of experts on whether this arrangement between the parents is always in the best interest of the children.
The concern of the court was sparked by three divorce matters which were not opposed by the parties and where they had agreed to share residency in respect of the children involved.
The court said these three matters provide a snapshot of the growing trend where parents agree to shared residency, assuming that co-parenting can only be accomplished by way of equal sharing of the care and residency of children.
The parents feel that the only way the non-residential parent can remain involved in a minor child’s life is if the child commutes backwards and forwards each week between the parents’ respective homes.
The court noted that shared residency is becoming a mechanism whereby one parent (usually the financially stronger party) effectively restricts the other parent’s (usually the primary caregiver during the marriage) freedom of movement by ensuring that the other parent cannot move away with the children.
“This residency arrangement is also used in support of the argument that no cash maintenance is payable to the financially weaker parent as residency is shared equally and that no decision in respect of the minor child can be taken except if both parties agree thereto.”
The court added that the Children’s Act does not require joint decision-making in respect of a child, except in very specific circumstances such as, for example, when the child is removed from the borders of the Republic.
The Act provides that co-holders of parental rights and responsibilities may act without the consent of the other co-holder except where the Act, any other law, or a court order provides otherwise.
It only requires that due consideration be given to the views and wishes expressed by the other co-holder of parental rights and responsibilities, and the child before a major decision is taken that affects the child or has an adverse effect on the exercise of parental responsibilities or rights by the other co-holder.
“As both parents are vested with parental rights and responsibilities, legal representatives and their clients assume, incorrectly so, that shared or co-parenting requires that each parent must have equal time with the minor child.”
The court said in the three cases under the spotlight, no authorities were presented to support the assumption that shared residency is automatically the default position when both parties are vested with full parental rights and responsibilities.
The court referred to an earlier similar case dealing with a matter where the parents had a shared residency arrangement in place and the mother wanted to relocate to another province. It was said in that case that “it is a myth that shared parenting necessarily involves a fifty percent timeshare in raising children.”
The court in the present three matters said there is no presumption that a shared residency agreement, or for that matter any agreement relating to primary residency, contact, and maintenance, is in a child’s best interest simply because the parents agreed thereto and have implemented it for a period.
In the first case, the children rotated each week between the homes of the parents. No maintenance was paid to the parent with the lesser income capacity. The agreements only provided for the payment of direct expenses such as school and medical expenses and that each parent is to assume responsibility for maintaining the children when they are with the respective parent.
The parents assumed that as the residency of the children is shared on a 50/50 basis, no cash maintenance is payable irrespective of the parties’ respective income and the trite principle that each parent contributes to maintenance pro-rata his/her income.
The Family Advocate raised concerns that shared residency may not be in the interests of the children involved and did not endorse these agreements.
The parents argued that because shared residency had been in place for some time and they had agreed to it, it in essence automatically was in the best interest of their children and that the court should not disrupt the status quo.
The other two cases were similar, and the court called for an investigation into what is in the best interest of the children before ruling what the parenting arrangements should entail.1
Pretoria News