1. Custody, care and control, and access

1. Custody, care and control, and access

Custody can be sole or joint. In recognition of the best interest of the children, the court normally makes order for joint custody and proceeds on the presumption that competent, loving parents possessed of sufficient objectivity to be able to make rational decisions in the interests of the child will be able to cooperate with each concerning matters of importance in the upbringing of the child.

The decisions to be made by a custodial parent are those of real consequence in safeguarding and promoting the child's health, development and general welfare. They include decisions as to whether or not the child should undergo a medical operation, what religion the child should adhere to, what school the child should attend, what extracurricular activities the child should pursue, be it learning a musical instrument or being coached in a sport. A parent vested with custody has the responsibility of acting as the child's legal representative.

Note however the non-custodial parent is always entitled to know and be consulted about the future education of the children and any other major matters. If (s)he disagrees with the course proposed by the custodial parent (s)he has the right to come to the court in order that the difference may be determined by the court. A non-custodial parent therefore has the right to be consulted in respect of all matters of consequence that relate to the child's upbringing

The decisions to be made by a parent who (at any time) has care and control of the child are of a more mundane, day-to-day nature, decisions of only passing consequence in themselves but cumulatively of importance in moulding the character of the child. They include a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child's immediate care. They include decisions as to what the child will wear that day, what the child may watch on television, when the child will settle down to homework and when the child will go to bed. They also include the authority to impose appropriate discipline.

Access is granted to the parent who does not have care and control and gives that parent the right to spend time with the child on a visiting or staying overnight basis. Access to a parent is a child’s basic right and it is part of the responsibility the parent with care and control has towards the child that access should be facilitated and accommodated.