SHARED RESIDENCY MYTHS: EQUAL TIME DOESN’T ALWAYS EQUAL BEST INTERESTS

The South Gauteng High Court has addressed issues relating to the shared residency of minor children in a recent judgment relating to three separate unopposed divorce matters. In each of the cases before the court, the parties had agreed to a 50/50 shared residency arrangement in respect of the minor children. However, the high court and the Family Advocate raised serious concerns regarding whether such shared residency arrangements, and the exclusion of cash maintenance payable to the financially weaker parent as a result thereof, were truly in the best interests of the children.  

The matters before the court  

The three cases before the court were that of WJ S v R S (“the S matter”), L DK v J-P DK (“the DK matter”), and PB VZ v L VZ (“the VZ matter”).  

In each of these unopposed divorce proceedings, the parents of the minor children had signed settlement agreements confirming that they would remain co-holders of parental rights and responsibilities and regulating their contact with the minor children. The parties had agreed to implement shared residency on a one-week-on/one-week-off basis, with the children rotating between their parents each week.  

In their scant pleadings before the court and later in oral testimony, the parties all asserted that the shared residency arrangements were in the best interests of the children concerned simply because the arrangements had been in place for some time. 

The S matter 

The parties in the S matter testified that the shared residency arrangement, which had been implemented for a year, was in line with the children’s expressed wish. However, the Office of the Family Advocate conducted an investigation and raised serious concerns that this was not the case. In fact, the children were merely informed by their parents of the arrangement, were not given a choice, and were incredibly emotional after every rotation between the parents. 

The Family Advocate’s investigation also found that despite the parents’ testimony, their communication was far from effective and that they had even been involved in an altercation on school property. It was also determined that both children were displaying regressive behaviour and struggling to adapt to the shared residency arrangement, which was only exacerbated by the acrimony between the parents.  

Further, there was a stark difference between the standard of living enjoyed by the children when living with their father as opposed to living with their mother. Despite a large gap in the parents’ respective income, it was agreed that there would be no maintenance payable to the financially weaker parent.  

The DK matter 

Similarly in the DK matter, the parties testified that the shared residency arrangement had been in place for some time and that the children had adjusted well and were happy. However, the Family Advocate again raised concerns regarding the emotional stability of the children, with one child experiencing extreme separation anxiety and the other seemingly having been prepared for the interview with the Family Advocate. The court also questioned why the parties agreed that cash maintenance would not be payable to the mother of the children, considering the significant difference in the parties’ earnings.  

The VZ matter 

Finally, in the VZ matter, the parties again described an idyllic situation in which they have equal contact with the children and co-parent in a harmonious way to the benefit of the children. After an interview with the Family Advocate, it came to light that the parties had perjured themselves and that the children only spent every alternative weekend with their father. When asked why the father wanted the shared residency regime, he reasoned that he did not want the mother to enter into a new relationship and relocate with the children. 

It was also found that despite a difference of over R100 000,00 in the parties’ monthly salaries, they had agreed that no cash maintenance would be payable, which fact baffled the Family Advocate and the court. 

The Divorce Act and the Children’s Act  

Parties to a divorce may expect the court to rubberstamp any agreement they reach on the basis that the divorce has been settled. However, the Divorce Act 70 of 1979, as amended, places a duty on the court to consider the best interests of the child in all divorce proceedings, whether they are opposed or unopposed. 

This is in line with section 9 of the Children’s Act 38 of 2005, which provides that the child’s best interests must be of paramount importance in all matters concerning the care, protection, and well-being of a child.  

The high court, as the upper guardian of all minor children, would be committing a grave miscarriage of justice should it choose to blindly accept that an arrangement agreed to between parents for the sake of their own convenience or alternative motives is necessarily in the best interests of the child involved. 

Shared residency 

There is a general misconception that what is best for the child in all circumstances is to be raised by both parents equally. As such, shared residency arrangements are viewed as the golden standard and ideal manner in which equal care and contact may be implemented. It has over the last decade become a default position or a right parents think they are entitled to at separation or divorce.  

However, courts must consider the facts of each and every case in order to determine what is truly in the best interests of the child. It is important to realise that every family is unique with their own dynamics, and what may work for one family, may not work for another family.  

Maintenance 

Unfortunately, shared residency has also become an unfair tool that the financially stronger parent, often the father, using shared residency as a means to avoid paying cash maintenance to financially weaker parent, often the mother, on the basis that the children spend an equal amount of time with each parent, and to further restrict her movement, if she ever wanted to move with the children. This could lead to devasting financial and other implications for the financially weaker parent.  

Haupt AJ confirmed that this cannot be the case. There is no reason why parents should not remain responsible for the maintenance of the child in their pro rata shares based on their income, even where a shared residency arrangement is implemented. Any other alternative would place the financially weaker parent in an extremely difficult position, as they are unable to provide the same standard of living as the other parent. 

Evidence before the court 

Parties in unopposed divorce proceedings tend to put forward a utopian scenario to the court to motivate how a proposed shared residency arrangement will be successfully implemented and how any communication issues between the parties (which presumably led to the breakdown of the marriage) will simply not arise.  

More often than not, there is ample evidence to the contrary. However, courts are not always presented with the necessary evidence and are expected to have regard only to bare pleadings which refer to the settlement agreement reached between the parties and not the actual facts of the case. 

Parties merely aver that the agreed contact arrangement is in the best interests of the child as it has been implemented for some time already, but do not provide any substantive reasons in support thereof. More often than not, as opined by AJ Haupt in the judgment, a shared residency arrangement is often an underhanded attempt to exert control over the freedom of movement of the other party or a tool to get out of paying cash maintenance, potentially placing undue stress on the financially weaker parent and the child. 

Significance of the judgment 

The judgment serves to disabuse all of the notion that shared residency is automatically deemed beneficial for the child merely because both parents agree to it, and it has been implemented. The judiciary, together with the Office of the Family Advocate, bears not only a discretion but a duty to ensure that all settlement agreements and contact arrangements genuinely serve the best interests of the child and not merely the preferences or selfish motivations of the parents. This important judgment highlights that an interrogation in respect of children’s requirements must take place in both opposed and unopposed matters. Very often parties do not expect a grilling of the facts and circumstances in instances where an agreement between the parties is reached.  

There are also instances when a financially weaker parent may not have the financial means to fight the demands of a financially stronger parent, insisting on shared residency with no cash maintenance, and a proper interrogation of the facts and circumstances are essential by the court and Family Advocate to ensure that the arrangement is in fact in the best interests of the children.  

This judgment also sends a warning to all legal practitioners: a legal practitioner’s overriding duty remains to the court and the interests of justice, and not their clients. In the VZ matter, the plaintiff’s attorney was ordered to forgo all fees he incurred in the matter as a mark of the court’s displeasure towards his conduct in his unprofessional communication with the Family Advocate and failing to disclose all material information to the court. A parent completing the Annexure A document (which is an attachment to a divorce summons) needs to provide the Family Advocate with all the relevant information and not the bare minimum hoping for a rubberstamp of the parenting plan submitted. 

The best interests of the child must remain the primary consideration in every matter involving a child, and all litigants and legal practitioners would be well advised to ensure that any agreement truly serves the interests of the child before requesting the court’s endorsement.