A divorcing father used to have to prove his wife was an unfit mother before a court would place their young child in his care - but the new Children’s Act has changed that.
In effect since last year the new law gives both parents equal rights and responsibilities when it come to their children.
“Fathers now have just as many rights and responsibilities as mothers; they just don’t realise it,” says MARTIN-DEAN HAYWARD, a lawyer specialising in family law. “The moment a child is born both parents have equal rights. A father is entitled to every right a mother can claim.
“In a divorce only one consideration is valid in court: what is in the best interests of the child. It’s not about the mother or father; the court puts the child first.”
So it’s becoming easier for dads to be appointed primary caregivers of their children.
“The best time to fight for your kids is the moment you decide to divorce and can’t agree on your child’s primary dwelling,” Hayward advises.
Be choosy about the lawyer who’ll represent you, he says. “Appoint one who specialises in family law.” The children will have to stay with either parent while the divorce proceeds through the court. “Usually mothers automatically fill this need until the parties reach an agreement - but this doesn’t have to be the case. Nothing in the Act says a mother will automatically be the primary caregiver of the child.
A court-ordered investigation of personal situations and lifestyles will determine whether a parent is fit to be the primary caregiver.
“We’ll look at whether the father has a job, his income, how far his home is from the school and whether there are relatives or a minder who can help drop off and pick up the children,” a family advocate says. Being able to cook healthy meals and help with homework and whether the children have their own rooms also count in the parent’s favour. Each case is judged on its merits, the advocate emphasises.
“But the courts are slowly moving away from gender and refer more to the concept of ‘parent’,” Hayward says. “They realise a man can provide for a child’s needs just as well as a woman can.”
- How to build a relationship with your child after divorce - find useful advice in the latest issue of YOU.
