Much has been written and said about what exactly the “best interests of the child” means. For present purposes it suffices to say that the court will look at what is best for the child, it will focus on the child’s needs and not the needs of the parents. For indeed, it is often the needs of the parents which come to the fore in custody battles - often the need to be victorious.

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There are several standard arrangements regarding custody and access, which the parties agree upon or the court orders:

 

1. Primary Residence

This is the most common arrangement. Here the children will have their permanent home with the custodian parent (often the mother). The other spouse (often the father) will have rights of access to the children, including:

• Having them every second weekend

• An evening or two during the week

• Half of all school holidays

• Every second public holiday

• Regular telephonic / electronic contact

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Of course, this is a generalisation and there are many factors which affect these arrangements (especially the age of the children).

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2. Sole custody with no access:

This is the rare case where one spouse has custody of the children and the other spouse has no rights of access to them.

Since a parent has common law and statutory rights of access to his children, a court will only remove such rights in an extreme case.  An example of this would be a parent who has previously abused or harmed the children and there is a chance he might do so again.  A court may however grant supervised access under such circumstances.

 

3. Joint custody            

In this arrangement, there is no “primary residence”.  The children spend half of the time with their mother and half of the time with their father.  There is no fixed rule however and it might be that the children spend 4 nights a week with their mother and 3 nights with their mother.

                  

This arrangement is somewhat controversial though increasingly common.  There are, to say the least, both pros and cons to this arrangement and much investigation and discussion will need to take place before implementing such a scheme.

 

4. Agreed custody

In most instances, the parties agree upon the issue of custody. And even though times are changing, it is usually the mother who is the custodian parent, with the father exercising rights of access.

 

Even where custody and access are agreed, there is still a requirement that the family Advocate must approve of the arrangements. The Family Advocate is a government department made up of lawyers and social workers, whose job it is to look after the interests of minor children.

 

5. Contested custody

Where the parties cannot agree on the particular arrangement of custody and access to be adopted, the court will be asked to resolve the matter.

 

In cases involving minor children, the court is referred to as the "upper guardian of minor children".

This means that the court’s authority over minor children exceeds even that of the parents of such children. The court will go to great lengths to determine what is in the best interests of the minor child.

 

In a contested custody case the will investigate the case, interviewing the parents and, if appropriate, the children. A lengthy report with recommendations will be drawn up and presented to the judge. The judge will consider the recommendations but is not obligated to implement them.

 

Usually, both parties will also engage a forensic social worker or psychologist to do an independent investigation of the matter, once again by interviewing all parties concerned. These experts will then produce lengthy reports and testify at the trial.