Mark and Hannah were married for 8 years in January 2021. From the marriage, Emily (3) and Hazel (5) were born. Mark and Hannah have been separated for 2 months now. Emily and Hazel have been living with their mom, Hannah, during the week and visiting their dad on alternate weekends.
As a parent, your biggest concern is the best interest of your child. So, what happens when their best interests are threatened by divorce or separation? Which parent becomes the primary caregiving parent, and which has visitation? During a time of complexity and uncertainty, South African courts strive to ensure a sense of normality and stability via the implementation of various procedures, one of which being the status quo doctrine. Custody and maintenance cases, although common, are complex battlefields to navigate because of the rapid lifestyle change and high emotional strain on all parties involved.
In many cases, before a custody hearing has been arranged, parents have already come to some sort of agreement regarding the visitation and custody of the children involved. The court refers to this pre-custody hearing arrangement as the “Status quo.” This doctrine is applied by assessing both parents current living conditions, the age of the child involved, the relationship between the child and each parent, and the ability of the parents to meet the child’s needs. The judge will decide based off these factors as well as the participation of the child. Due to subjective nature of understanding the child’s best interests, the court encourages the child’s participation in the matter in a way that is appropriate. The court will give due consideration to their views. (The Children’s act 38 of 2005, section 10)
The primary purpose of the application of the status quo doctrine is to ensure that the best interests of the children are of paramount importance. (Shawzin v Laufer 1968) The court will consider the standard of care that the child currently enjoys as well as the implementation of measures that are the least disruptive to the child’s life. This often results in a judgement in favour of the continuation of the arrangement that parents currently have regarding care and visitation. (The Children’s act 38 of 2005, section 7) The history of court rulings shows a clear presumption in favour of the status quo doctrine due to the courts reluctance to upset the child’s best interests. However, the court can, and has, changed the status quo agreement where it feels that the current custody agreement is not suitable for the child.
In order for the court to justify the amendment of the current status quo, a number of factors will need to be investigated. These factors include signs of abuse, the practicality of the current arrangement, and any evidence that the child’s needs may be better served with the non-custodial parent. (R v R) The court will strive to cause as little disruption as possible, whilst upholding the principles of the Children’s act. Once the Judge has made a decision regarding custody and maintenance, parents are encouraged to set up a parenting plan and adhere to the decision rendered by the court.
For more information on the status quo doctrine and how it pertains to you, contact our family law department for a consultation.