An acting judge, in dealing with a tug-o-war between divorcing parents regarding the custody of their child, urged parents to respect each other when it came to decisions regarding their children.

Acting Judge Ceri von Ludwig, sitting in the Gauteng High Court, Johannesburg, remarked that it is a heavy burden on a court to have to decide what is best for a child when that child’s own parents are unable to do so.

“It is a responsibility for which we must be grateful because the parents have turned to us and said, ‘help us’. It is not always an abrogation of the parents’ responsibilities by the parents. It is the parents saying, ‘I know what I think is best’, but it does not concur with what the other parent thinks is best”. 

Judge von Ludwig added that the court struggles when there are two good, loving parents and two good, loving support structures and they are unable to objectively determine what is best for a child.

“That does not mean that a court can get it right,” the judge told the parents who both wanted custody of their little girl. In deciding who will be the best parent to award custody to, she had an array of expert opinions on the matter, which included the Family Advocate’s Office, a social worker as well as reports from other experts.

The judge commented that “anyone in family law will tell you that even those reports where they do psychometric testing, where they conduct all the various tests that can be done on children in age-appropriate circumstances, there is still no objective test as to whether you get it right”.

“But what I do want us all to remember is there is no objective test as to whether you get parenting right even when you are in the happiest of families.” Judge Von Ludwig added that all everyone can do is to do their best and place the child first.

She also pointed out that these cases do not need to drag on forever in the hope of getting the “right answer”, because there is none. The judge said the right answer depends on the parents learning to respect and deal with each other, and the family structures learning to find a way.

Judge Von Ludwig told the parents in this matter that ‘we live in a very hard world, and when a child is the subject of it all, it is incredibly difficult to take a step back and be the bigger person’.

“But it is possible. Test yourselves, you will see that it is possible and always put her at the forefront of your mind,” she advised the parents.

She pointed out that there are many cases and many learned views drawn from other case law, but the overriding fact is that every case is different, and ‘yet every case is the same because we all live in one country, one society’.

“We are constrained to always provide a child as best we can with stability and routine,” the judge said, adding that both parents have a right and responsibility to parent their child. It is a responsibility enshrined in the Children’s Act and in the constitution.

In this case, she concluded that the child shall share care and contact with the parents equally and stay two weeks at a time with each parent, while the parents must attend post-relationship co-parenting counselling.

zelda.venter@inl.co.za

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