A couple makes the decision to get divorced. The next decision is deciding who will have primary residence over their child/children. During settlement negotiations either spouse puts forward their proposal regarding the children, but does anyone ask what is it that the children want? Which parent do they want to live with? The short answer is no.

Section 17 of The Children’s Act 38 of 2005 (“the Act”) determines that the age of majority for a child is 18 years old. Therefore, a child under the age of 18 years does not have any legal rights in terms of the Act and cannot make any decisions in their personal capacity without the authorisation of their parent or legal guardian, unless they have been emancipated.

The courts however will apply Section 10 of the Act and take into consideration the statements of the children, depending on their age, maturity, and stage of development, when making the decision of which parent will be granted primary residence.

The main reason minor children are not allowed to make the sole decision pertaining to which parent they would like to live with is because they are just minors and can be easily influenced by either parent. This is why it is compulsory for the Family Advocate to get involved during matters involving children in divorce proceedings.

The Family Advocate, usually assisted by a family counsellor, or social worker, will consult with each parent and each child individually. It is an opportunity for the child to be heard in a neutral environment. The Family Advocate will thereafter draft a report and recommendations pertaining to primary residence and visitation. The report is then submitted at court and the court will make a decision taking into account the report and recommendations, and the best interests of the minor child.

To summarise, until a child attains the age of majority, they are considered a minor and are not able to choose which parent they would like to live with in the event of a divorce. However, the court does take into consideration the needs of the child as well as their own personal statements if they are able to give one.

 MAYA NARSAI MAKAN specializes in Divorce and Family Law Matters and is a senior associate at Alan Levy Attorneys Notaries and Conveyancers.