The best interests of the child in cases of deprivation of post-divorce parental contact

Abstract

The standard of the best interests of the child has developed as a decisive factor in all matters affecting a child, including the determination of care and contact orders by the South African courts in divorce proceedings. While the courts always seek to protect the relationship of the child with both parents, contact with a parent may not always be in the best interests of the child where the parent is abusive to the child’s custodian parent. The violence of a parent is inalienable to the parenting skills of both the abused and the abusive parent. Furthermore, exposing a child to spousal abuse has adverse effects on the child’s welfare. The best interests of the child requires that decisions that affect the child must not override the child’s welfare. This dissertation explores the consideration of the violence of a non-custodian parent as a factor when determining the contact of the parent with the child. It studies the legislative and judicial interpretation and application of the best interests of the child standard in the determination of the parent’s contact with the child where there are allegations and evidence of spousal abuse. Both the law and judicial interpretation thereof have not effectively espoused spousal abuse in the determination of post-divorce parent and child contact. The direct and indirect adverse effects of spousal abuse on a child requires, therefore, the legislatures and courts to consider the violence of a parent more pertinently when determining whether it would be in the child’s best interest to continue to have contact with an abusive parent.