This means the primary person taking care of the children. The law says that children must always have an adult to look after them. The court always takes into account the best interests of the children, not just the interests or wishes of the parents. So if the parents cannot agree on who should have care of the children, then the court looks to see which parent can best look after the children. The courts will ask the Family Advocate to hold an enquiry to see what would be in the best interests of the children who are under 18.

The Family Advocate

The Family Advocate can look at guardianship and parenting agreements, which make provision for care and contact and other parental rights and responsibilities.

There is a Family Advocate’s office in each division of the High Court. They assist the parties to come to an agreement that will be in the best interests of the child. If the parents are unable to agree they evaluate the case and make a recommendation based on the best interest of the child. The Family Advocate will then produce a report for the court. The Family Advocate’s recommendations are not binding unless it is approved by the court. The Family Advocate cannot act for either of the parties and they cannot be subpoenaed to court to be a witness for either party.

One of the parents can also ask the Family Advocate to hold an enquiry. For example, if the husband sues for divorce and asks for care of the children but the wife also wants custody, then either of them can complete an ‘Annexure B’ form which asks the Family Advocate to enquire into the problem. You can get an ‘Annexure B’ form from the Registrar of the High Court, an attorney, Legal Aid or from the Family Advocate’s office.

The Family Advocate does not charge the parent for holding the enquiry.

Divorces can take a long time. If one of the parties wants care of the children (for example, if the children are being threatened) while the divorce is happening, the party can make an application for interim care. This means asking the court for full time care of the children until the divorce is settled. If the party is really worried that the children are suffering or if there is a threat that one of the parties is going to kidnap the children, the other party can make an urgent application for care and that any contact be supervised.

After the divorce, if the parent who doesn’t have care of the children tries to take the children, the parent with care can ask the court for an interdict. This is an order for the parent to return the children.

In African customary marriages, the court also decides which parent should have custody and guardianship on divorce, based on the best interests of the children. The Childrens Act and the Maintenance Act make provision for equal rights and duties of parents of children of religious marriages in terms of which the fact that the marriage is not legally recognised is not an issue.
(See: Custody, guardianship and support of children)