Joint Custody of Minor Children

INTRODUCTION

In practice, in uncontested cases the Courts generally perform a ‘rubber stamping’, function, and in the absence of strong countervailing reasons will award custody to the parent desiring it. However, when it comes to contested custody cases, the Court, in it’s role as upper guardian of all minor children, must choose between competing parents. The Court’s tend towards a form of ‘legal traditionalism’ in favouring the sole-custody award. But traditional parental roles and expectations are changing, making the concept of joint custody, as opposed to sole custody, impressively appealing. ¹

WHAT IS JOINT CUSTODY?

Joint custody can mean either :

Joint physical custody – both parents spend substantial amounts of time with the child.
Joint legal custody – equal rights to make major decisions affecting the child.

In the United States, “joint custody” includes both physical and legal custody, while in England the term refers only to legal custody, with the daily care and control of the child being vested in one parent, and the other having reasonable rights of access and sharing in the decision making process in respect of matters concerning the child. Both countries are moving toward joint custody as the preferred option in child custody cases.

ADVANTAGES:

FROM THE CHILD’S POINT OF VIEW:
‘Parents are forever’ and joint custody ensures a continuing relationship between the child and both its parents, so that it need not feel deserted, abandoned or rejected by the absent parent. The result is that loyalty conflicts are largely eliminated.
FROM THE PARENT’S POINT OF VIEW:
1. “pressures” are shared jointly
2. the “winner takes all” feeling is reduced
3. the question of access tends to resolve itself
4. there is no need to ‘banish the father or overburden the mother’
5. it largely eliminates a custody contest
6. a flexible order

DISADVANTAGES:

A child needs only one psychological parent to provide it with the security and stability of one home and one decision maker.
If parents are unable to maintain a stable and viable marriage, they cannot be expected to achieve the high degree of co-operation required for joint custody.
It is counter to the ‘clean-break’ principle in divorce in terms of which spouses should not maintain contact.

Therefore, to be successful, certain prerequisites must be met:

Both parents must be committed to loving and caring for their children, and to this end there would have to be a measure of co-operation between them.
The parents should share similar values and outlooks on life.
Geographical proximity is important.
The ages and number of children may play a role.

Kaston vs Kaston (1985) joint custody order was granted because:

Both parties were experienced and competent parents.
The children were equally bonded to both parents.
The children expressed satisfaction with the arrangement.
The parents were determined to make it work.
Animosities had subsided and the parties were compromising.

BRIEF DISCUSSION ON A FEW DECISIONS BY OUR COURTS IN THE PAST CONCERNING JOINT CUSTODY

SCHLEBUSCH vs SCHLEBUSCH 1988 (4) SA 548
The Court refused to grant a joint custody order to the parents of four minors.

REASONS FOR THE COURT’S DECISION:
1. The Court admits that, in accordance with Hahlo, it is possible to obtain a joint custody order, but adds that as a general rule, S A Courts in the past have not been in favour of making such orders.
2. The interest of the child remain paramount in deciding questions of custody
3. There are only very rare cases where a satisfactory situation of continuing joint decision making is possible. The Court sees this as a “utopian state of affairs”.
4. The Court rejects the notion that an award of joint custody ensures a continuing relationship between a child and both its parents.
5. The Court sees joint custody as making it more likely to encourage a tug of war situation between the parents.
VENTON vs VENTON 1993 (1) SA 763
The Court granted a joint custody order to the parents of minors aged eight and four.

REASONS FOR COURT’S DECISION:
1. The parties parted five months earlier with no acrimony or animosity on either side. They had worked out a flexible arrangement with respect to their children which was working well.
2. Joint custody orders are rare. The personal circumstances of parents who live separately and their ruptured relationships are seldom conducive to these types of orders.
3. But Section 6(3) of the Divorce Act says the Court may make any order it deems fit with respect to custody, provided it is in the best interests of the children.
4. The Court has the power to order joint custody, but will exercise such power cautiously and only when the interest of the child calls for it.
5. Often it is not in the best interest of the children to have parents make joint decisions concerning them, particularly where divorce has been preceeded by animosity and disharmony between the parents. There is the continuing possibility of a deadlock arising over every triviality.
6. Joint custody is not a legal impossibility, but is usually a practical impossibility.
7. Everything depends on the particular circumstances of each individual matter.
8. Joint custody will not be awarded unless the parties satisfy the Court that no practical impossibility of any consequence seems likely to ensure.
9. Circumstances that were taken into account :
  - The Family Advocate and Social Worker interviewed the parties, assessed their respective homes and nursemaid and observed the children.
  - Psychologist assessed their personalities, emotional equipment and intellectual calibres.
  - The parties were found to be sensible, mature, responsible and temperamentally stable people.
  - There was a good relationship between them; they respected, trusted and remained fond of each other.
  - Throughout their cohabitation they had shared the duties of parenthood amicably.
  - The parties have similar outlooks and values with respect to upbringing.
  - The parties are committed to the experiment of joint custody and dedicated to its success.
  - In effect the parties had acted as joint custodians ever since the separation and the children appeared to by happy and well adjusted to this new arrangement.
PINION vs PINION 1994 (2) SA 725
The Court refused to grant the joint custody order.

REASONS FOR THE COURT’S DECISION:
1. The family Counsellor recommended that the custody of the minor daughter be awarded jointly to the Plaintiff and the Defendant because:
  1. The parties have accepted the breakdown of their marriage and have worked through the negative feelings involved in divorce. They both want to be as involved in their daughter’s life as they had been in the past.
  2. The minor appears to be adjusted to this arrangement and feels comfortable with both her parents the Family Advocate concurred.
2. Section 6(3) of the Divorce Act grants the Court the power to award joint custody, but only if it is in the best interest of the child. Usually it is in the child’s best interest for it to know that there was one definite person who in the last instance controlled it.
3. Hofman and Pincius (The Law of Custody) recommends that joint custody only be awarded in special cases where parents retain no hostility and resentment towards each other and are truly adult in their dealings with each other and mature in the way they relate to their children.
4. There is a risk that the parents’ future behaviour could be detrimental to the children in a joint custody situation and therefore this risk must be excluded unless joint custody presents a significant advantage to the minor.
5. The Court is unconvinced that there is no real risk of acrimonious or irresoluble disagreement between them in the future, which will rebound to the detriment of the minor. It is imperative that the child should know with whom the ultimate say lies and not be afforded the opportunity of playing one parent off against the other.
6. The Court was unable to see any substantial advantage of joint custody.
7. Therefore the Court found that it was not in the best interest of the minor child to grant the order.
CORRIS vs CORRIS 1997 (2) SA 930
The Court found that it is in the best interest of the minor children to have joint custody.

REASON FOR THE COURT’S DECISION :
1. The Family Advocate’s recommended joint custody because:-
  1. Joint custody had been working well;
  2. The parties lived reasonably close to each other;
  3. The parties seemed to be mature, sensible and reasonable people .
2. The objections to joint custody:-
  1. There should be only one captain of the ship;
  2. Daunting prospects of future litigation.
  But each case must be decided on its own merits.
3. The Court was not intimidated by the prospect of future litigation. Should circumstances change the parties are at liberty to approach the Court for a variation. The Court did not find it unacceptable that parents jointly consider matters relating to their children before coming to a decision.
4. The Court was in favour of the move towards joint custody.
5. The Court referred to Prof. Schafers article on “Joint Custody”.

CONCLUSION

There is nothing to preclude a Court in a proper case from awarding joint custody of the minor to its parents, though in practice, it is rarely, if ever, done in South Africa. As a child must know where it stands, the Courts are loath to allow responsibility to be divided or to put the non-custodian spouse in a position where he can dispute or undermine the authority of the custodian parent. Accordingly, they will generally refuse to accept an agreement under which the spouses agree to joint custody. ²

Professor Schafer “Joint Custody” 1987 104 SALJ 149
Hahlo “The South African Law of Husband and Wife” 5th Edition referred to in Schlebusch v Schlebusch at pages 393 and 402