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Guardianship, custody and access after divorce

“The first thing we do, let’s kill all the lawyers.” -Shakespeare:

King Henry IV, Part II
While parties are married, they have complete parental control over their children, consisting of guardianship as well as custody. When they separate, the day-to-day care of the child is normally awarded to one person, with visitation rights to the away-parent. Before a divorce is granted, the court must be satisfied that the best arrangements possible have been made for the children. The courts have over the years ascribed a meaning to each of the concepts relating to children after divorce.

Custody
Custody (in some countries they refer to it as residence, in other words, where the child lives) refers to the day-to-day care of a child. The custodian parent therefore makes the practical decisions as dictated by the circumstances, for example where the child goes to school, what extra-mural activities will be pursued, when to be with friends and time curfews etc. Although the courts have historically favoured the mothers in awarding custody, the situation is very different now, Moreover, the courts have expressly decided that there is no place for stereotyping in our modem society and as a consequence many fathers are successful in asking for custody.

Access
While the family is intact, there is really no need to expressly define access (or contact) because there is a natural daily interaction taking place between the parents and their children. However, once the parents live apart, and the children are placed with one of them, the children’s rights to association with the away-parent also need to be addressed. These contact orders are generally referred to as access.Unless the Court takes away this right, which is very seldom done, the away-parent will have reasonable access. These access-rights are often defined in the settlement agreements and it is also advisable as it will create more certainty for both parents and not least for the children. The access may refer to visitation rights only if the child is very young, or may (more commonly) allow removal of the child from the custodian parent for particular periods of time. The periods or removal will vary according to the age of the child, and the child’s own needs such as cultural or sport activities. The normal arrangement, however, is removal for alternate weekends and alternate school holidays.

Sole custody
A concept most often misunderstood is that of sole custody. By awarding custody to one parent, the court does not take away any rights of the other parent, but simply suspends it while the child is not with him or her, but when sole custody is awarded, it simply means that all custodian rights are transferred to one parent. That means that if the sole custodian dies, he or she may stipulate in a will that a third party may become the custodian upon her or his death. Sole custody is seldom awarded and will only be asked for in extreme cases, for example where a person is in jail for a long time, or completely absent. These are only examples. There may be other circumstances.

Joint custody
Joint custody means joint decision-making about day-to-day matters involving the children. Parties asking for this should be at least on friendly terms with each other, close enough to allow regular interaction and not opposed on important issues such as religion, moral values and general child-rearing principles. If joint custody is awarded, the court normally insists that the residency must be fixed in order to avoid constant shuttle between the two homes, which may negatively affect the children’s sense of security.

Guardianship
The courts seldom specifically deal with guardianship, referring to the parental responsibility to act on behalf of a child in circumstances where the child cannot, legally do so because of his or her minority status. Parties normally retain joint guardianship after divorce allowing them to act independently (for example to consent to medical intervention). They are required to act jointly, in only a few specific cases (for example to give consent for adoption, to apply for a passport or to give consent to leave the country). It is vital to remember when dealing with these issues to bear in mind that whatever a parent does, should be in the child’s “best interests” and is subject to adjudication by the court as upper guardian of all minor children.

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