What happens to my children if I get a divorce?

In order to help your children adjust to life after a divorce, there are various aspects that you will need to consider, namely:

• Who will have a say over major and important decisions for the children;

• Which parent(s) the child will live with; and

• What arrangements will be made for the parent, who is not living with the children, to spend time with them

For the above-mentioned aspects, the court makes custody, care and control, and access orders for the children, taking into consideration the welfare of the children as the paramount consideration.

Custody Order
A custody order gives a parent authority and responsibility over the upbringing, education, and the major long-term decisions of the child. In general, the Judge will grant a joint custody order as it is in the child’s best interest that both parents share the responsibility of parenthood.

Under exceptional circumstances, it is possible for the Court to grant a sole custody order to one parent. However, this is usually only granted in circumstances where there has been systemic abuse or neglect of a child by the other parent.

Care & Control Order
A care and control order is made in favour of the parent who will live with the child and be the child’s primary caregiver. The court will assess the stability and security of the environment and may grant a sole or shared care and control order, depending on what is best suited for the child.

For young children, the court tends to lean towards granting a sole care and control order as it is preferred to ensure the child are given stability and consistency for their development. In general, if the court makes a sole care and control order in favour of a parent, the other parent will be granted reasonable access to the child (see Access Order below).

If a shared care and control order is granted, the child will spend roughly equal amounts of time with each parent. This means that the day-to-day decisions on the upbringing of the child will be made by the parent who the child is presently living with.

Where the divorcing parties have more than one child, the Court will be hesitant to grant a care and control order that separates siblings.

Access Order
An access order refers to arrangements made for the parent who is not living with the child to spend time together. Such arrangements may be defined as liberal, reasonable, scheduled, specified or supervised.

An order for reasonable or liberal access to be granted means that the parties are allowed to make the access arrangements between themselves while an order for scheduled or specified access requires the details (e.g. period and venue) of the access arrangements to be spelt out in the court order. An order for supervised access is typically granted only in exceptional circumstance such as where there are serious welfare concerns regarding the non-custodial parent.