Divorce: Best Interest of the Child?

Apart from issues such as domestic violence, and spousal maintenance, parties to divorce proceedings may also be compelled to deal with disputes involving their minor children.

These disputes may include matters such as child maintenance, primary care, contact and guardianship.

Although most disputes relating to primary care, contact and guardianship has been settled without any litigation by the Office of the Family Advocate, parties should remain alive to the general indicators used to settle these disputes.

The phrase “best interest of the child” became an almost modern adage amongst soon-to-be-divorcees, without them really appreciating what it entails.

What is legally considered when determining the best interest of a child?

Section 9 of the Children’s Act stipulates that the best interest of the child is of paramount importance to any matter where the care, protection and wellbeing of a child is concerned.

Section 7 of the Children’s Act provides a matrix against which the best interest of a child should be determined. It specifically provides for the following factors:

1. The nature of the personal relationship between the child and the parents
2. The nature of the personal relationship between the child and any other care-giver or relevant person
3. The attitude of the parents towards the child
4. The attitude of the parents towards the exercise of parental responsibilities and rights in respect of the child
5. The capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs
6. The likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from both or either of the parents
7. The likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
8. The practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis
9. The need for the child to remain in the care of his or her parent, family and extended family
10. The need for the child to maintain a connection with his or her family, extended family, culture or tradition
11. The child’s age, maturity and stage of development
12. The child’s gender
13. The child’s background
14. Any other relevant characteristics of the child
15. The child’s physical and emotional security and his or her intellectual, emotional, social and cultural development
16. Any disability that a child may have
17. Any chronic illness from which a child may suffer
18. The need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment
19. The need to protect the child from any physical or psychological harm that may be caused by subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour
20. The need to protect the child from any physical or psychological harm that may be caused by exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person
21. Any family violence involving the child or a family member of the child
22. Which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child

The interpretation of these factors remains subjective and is open for interpretation and argument by both parents, but greatly assist neutral persons like the Family Advocate, legal professionals, social workers and presiding officers to reach an outcome that may very well be in the best interest of the child.