Problems on custodial rights

Problems on custodial rights

Custody disputes are very much common and pre-valent whenever a separation goes on. Custodial rights of the child are vested in both parents and any decision which concerns a child should be taken by both parents because the care and custody of their child rests with the two of them.

Problems on custodial rights start arising as soon as a couple separates. Who will get custody of the child? What about access/visitation rights? Is physical custody a realm belonging solely to mothers and is visitation/access relegated to fathers by default? What do custody and visitation rights really mean?

Custody refers to the care, control and education of a minor child. In fact, care and custody applies only to children who are still minors. As soon as a child reaches 18, any care and custody agreement ceases to hold.

The court can order that one parent has sole care and custody of the child, with the other parent having just visitation rights. This means that the parent with visitation rights only will not have a legal say in any decision-making concerning the child. Joint care and custody, on the other hand, means that the care and custody of the child is vested in both parents with the child having the opportunity of physically staying with one parent and the other parent having visitation rights. However, the parent having visitation/access rights, unlike in sole care and custody, has a legal right in all major decisions regarding the child's upbringing.

The law does not discriminate. It does not preclude the father from having custody of the child. In fact, article 56(1) of the Civil Code lays down that "on separation being pronounced, the court shall also direct to which of the spouses custody of the children shall be entrusted..." Thus, the law decrees that it is up to the court to decide which spouse will have the care and custody of the child.

In certain cases, where, according to the particular circumstances of the case, it is not of benefit for the child to stay with any of his/her biological parents, the care and custody of the child will be entrusted to third parties, such as the grandparents or in alternative care.

"Care and custody should be allotted to the most ideal parent to educate and take care of the child, according to the child's age and the particular circumstances of the case," ruled the First Hall, Civil Court, in Magro vs Bonnett (December 11, 2003). The court went on to state that the determining factor in custody issues is what is of most use, advantage and interest of the minor child.

The court will look into, among other factors, the ability of the parent to take care of the child; the ability of the parent to attend to any special needs of the child; the immoral conduct of the parent if any; the ability to give continuity to the child's current environment; and the availability of contact with the child's other relatives such as grandparents (Beth Walston-Dunham, Introduction To Law, Fifth Edition, New York, 2009, p. 289).

In custody issues, the best interests of the child should be the child's moral integrity. The court, in Magro vs Bonnett, noted that children are not mere objects and the interests of the parents in custody disputes are subservient to the interests of their children. This reflects the law when it states, in article 56(1) of the Civil Code, that, in custody disputes, the welfare of the child is "paramount". Thus, when the court gives directions regarding the custody of the child, the best interests of the child are of paramount concern, that is, the best interests of the child is the over-arching, important and determining factor in any action dealing with the custody of the child.

Article 9(3) of the United Nations Convention on the Rights of the Child notes that "states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests". Thus, when one of the parents deprives another parent access to their child they are in effect depriving their child of his/her right to maintain personal relations and direct contact with the other parent.

Thus, the court's determining factor of who gets child custody is the best interests of the child. Consequently, the court looks at several factors that affect the child's life, needs and parental environment. Beth Walston-Dunham states that "...each parent may offer a suitable environment but the parent who is better suited to meet the needs of the child should prevail".

The author is a lawyer and a published author with a special interest in family law and child law.

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