Question posted in the Divorce Law category relating to Gauteng
My son and daughter in law is getting divorced and has a child of 5 years old. They are trying to do it amicably but her friend is a lawyer and said there can only be sole custody and not joint custody. My son does everything in the house, cooks, cleans, laundry, drops and picks up little one from school. He is a very involved father and does not want her to go and live in Nelspruit which is 4 hours drive away, on a secluded farm and on the other hand, she does not want him to leave the country with her. Thry would like a week interval when the little one takes turn to stay with them. She comitted adultery 4 times now and he decided enough was enough. He is also worried about her future boyfriends and the wellbeing of their daughter. Can he get joint custody ?
He works fulltime and she wants maintenance, she also works.
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow-up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Well, first off I have to say that this lawyer who you speak of does not know what he/she is talking about!
It used to be, many years ago, that there was custody.
Now, there is no such thing as who has custody.
Rather, both parents are caregivers to the child and then there is a primary caregiver.
The courts won't remove one person as a caregiver. The court will just decide who needs to be the primary caregiver to the child. In other words, who is the child going to live with, normally.
The parties can agree on any suitable arrangement which works for them, including some of the time living here and some time living there.
However if one party wants to move away from where the family currently lives to a farm 4 hours away, then a court won't order the child to move there. The court wants stability for the child, and not for the child to be dragged around the country.
Also, if one party wants to take the child overseas, then the other party will need to consent or the court will need to decide.
Ultimately, the court looks at "what is in the child's best interest?"
That is the test which is applied.
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