Garry Hertzberg, practising attorney at Dewey Hertzberg Levy Inc and presenter of the Laws of Life with Garry Hertzberg on Cliffcentral.com writes:
Madonna just lost a battle for the custody of her son who wanted to live with his father Guy Ritchie.
The decision seemed to be based on what the teenage boy said to the court and his desire not to live with Madonna.
To what extent does this apply to South Africa? We have all heard the term, ‘in the best interests of the child’, but usually, the parents give evidence to determine this.
When considering custody of children the court may use any evidence available. Experts such as psychologists, people who have contact with the child such as a schoolteacher, family members and so on are asked to give evidence.
The court can even appoint a legal practitioner to represent the child, instead of the parents, and order the parents to pay the costs of it. It is important to know that the Children’s Act states that a child who is old enough to understand what is happening has the right to take part and have his views considered.
A very recent divorce case proved this; this case was interesting as the parents of the child had not been married, but had shared parental duties between them over several years. The child had lived with each parent for long periods while the other parent contributed and had reasonable and seemingly frequent access. The parents even lived in separate cities, far from each other, but it was an amicable relationship.
Seemingly out of the blue, one of the parents refused to allow the child to return to the other parent after a school holiday, and so a court application was launched.
The child was about 11 years old at this stage and the court took her evidence into consideration, almost to the exclusion of the evidence of the parents. The court ruled that the child should live with the parent she expressed a wish to be with, and to visit with the other parent as per her wishes.
This case was a perfect example of the court acting in the best interests of a child who knows what’s best for them.
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