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Who gets the children during and after a divorce has been finalized?
01 December 2020  | Tumi Mokobe

One of the most heart-breaking parts of a divorce is the issue of children born out of the marriage, the issue of who gets primary residence of the children. In most instances, people would always wonder how the court determines the primary residence of the children involved in divorce proceedings. The following article deals with aspects the court takes into consideration when dealing with such matters.

As much as divorce proceedings can take its toll on the two parties involved, one person(s) it can also emotionally and physically drain is the child(ren) involved therein. Children grow up living with both parents in a happy and stable home, then all of a sudden they now have to live with one of the parents chosen by the court in a totally different environment.

Usually during divorce proceedings, the child(ren) would stay with the parent who left with them when that specific parent left the communal home, or the parent who stayed with them at the communal home when the other one left the home. However, it is possible to get an interim order of primary residence of the children while the divorce is in the process of being finalized. When bringing forth such an application, the applicant will have to convince the court that it is in the best interest of the children that the children stay with him/her while the proceedings are ongoing and that bringing such an application is indeed necessary. Usually such an order would be granted if for some other reason the children are placed in a position of not being able to attend school, or a social worker’s report is obtained stating that the children are currently being abused by the parent staying with them or the parent’s new partner, etc.

After the divorce has been finalized one parent would be given the primary residence of the children if only the court of the opinion that it is in the best interest of the children that primary residence be given to that specific parent. However, that does not mean that the responsibilities of taking care of the children will solely lie upon that parent, the responsibility of care of the children will be shared between both parents. The parent who does not reside with the children would usually be ordered to pay maintenance towards the upbringing of the minor children, or if the children are adults but not in a position to financially take care of themselves yet.

Therefore, in light of the above mentioned, it is clear that when deciding the primary residence of the children, the court’s test is in the best interest of the children.



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Tags: Divorce