If you are going to apply for a divorce, it is essential to make arrangements for the care and safety of your children. Family lawyers will advise you on the best way to go about it, because each case is different depending on certain factors. While there must be a separation of 12 months before you can apply for a divorce, often this can be one where both spouses continue to live in the same home and it is not until the divorce is final that one partner moves out.
This is when the children will feel the divorce most keenly as they will then be deprived of one of their parents to a great extent. It is essential that safe care arrangements are made and this will depend on who applies for custody and whether that custody will be a 50/50 arrangement for their ongoing care or whether one spouse will have most or all of the decision making.
Simply getting divorced makes no decisions about children or property. These things have to be dealt with separately. When taking into consideration the care of the children, the courts will make a decision based on what is best for them, rather than what either parent wants. Of course, that decision could well be what one of the parents does want.
For instance, in a case where one parent is obviously incapable of caring for the child due to drug addiction or being away working a lot of the time, or if there has been abuse to the child by one parent, the court will decide in favour of the other parent, so long as they can provide a safe and stable home and are willing and able to care for the child or children.
Where the 12 month separation period is not carried out in the family home, after the divorce is final, the children may remain with the parent who has cared for them during that time, so long as they are capable and willing – and have applied for custody.
The children’s opinion is rarely taken into consideration. They are not allowed to speak in a court of law, because the court recognises that they can be manipulated by either parent, especially when they are younger. But they can make their wishes known by telling a counsellor or family friend who can appear for them. The older they are, the more likely it is that the judge will take their wishes into consideration while making his decision.
While it may seem wrong that the judge will get to make the decision, many factors ensure that they only have the best interests of the child at heart; factors such as the age and gender of the child, and which parent is best able to care for them, amongst others.