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Safeguarding children’s rights during divorce
Divorce and the resulting challenges regarding child custody
and the responsibilities of parents can be an ugly and difficult process. This
is especially true of the children whose emotional and physical wellbeing would
have to be taken into account during the entire process. However, the office of
the Family Advocate offers an efficient and free service with the wellbeing of
the child in mind.
The Family Advocate (FA) manages disputes regarding the
responsibilities and custody of children during and after a divorce. The point
of the FA is to protect the rights of children and ensure that their best
interests are taken into account when it comes to their custody and the
parent’s responsibilities. The office of the FA is not just one person but
consists of lawyers and social workers who all assist in getting the best
outcome for the child/children.
What can the Family
Section 28(2) of the Constitution says, “A child’s best
interests are of paramount importance in every matter concerning the child”. This
forms the basis of the FA’s role in disputes.
The Family Advocate has the ability to:
- Institute an enquiry so as to be able to furnish
the court with a report and recommendation on any matter concerning the welfare
of the minor child;
- Appear at the trial or hearing of any relevant
- Adduce any available evidence; and
- Cross-examine witnesses giving evidence at such
trial or hearing of an application.
According to Mediation
in Certain Divorce Matters Act (Act 24 of 1987)
The Children’s Act 2005 (Act 38 of 2005) has also made
mediation by the FA compulsory for all parties involved in parental rights and
responsibility disputes over children born out of wedlock.
What’s the point of
the Family Advocate?
The FA has many advantages when there is a dispute over
children. The FA can change the parental rights and responsibilities agreements
of the parents without the need to go to court. A court will also take into
consideration a report by the FA before making any decision on the child, they
are even required by law to do this. Furthermore, a registered parental rights
and responsibilities agreement would be considered the same as a court order. The
office of the FA also allows for the children involved to express their point
of view and desires. In order to ensure the best for the child/children, the FA
will work together with social workers, psychologists and other professionals when
dealing with disputes.
Reasons to see the
- The parties disagree about how to contact or
care for a child.
- They want to draft, register or change their
parental rights and responsibilities agreement.
- Disputes about whether an unmarried father of a child
born out of wedlock fulfils the requirements making him eligible for the full
parental rights and responsibilities of the child.
A court may also order the FA to provide a report on what is
best for the children involved in a dispute. Altogether, the FA’s goal is to
ensure the child gets the best out of a divorce process and that their rights
are protected. They can not only help in disputes, but also provide a
comfortable environment and process for what can be a stressful time for the
“The Office of the Family Advocate”. The Department of
Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).