Legal and Psychological Criteria for the Determination of Custody in South Africa: A Review

Abstract

The criteria used respectively by mental health professionals and legal professionals in child custody assessments are reviewed. The review concentrates on case precedents and the psychological literature in an attempt to delineate the major criteria on which custody decisions are based. Differences in assumptions between the two groups of professionals are highlighted.'n Oorsig word gegee van die kriteria wat in voogdyskapgevalle gebruik word deur professionele persone in die geestesgesondheids-en wetlike beroepe. Die oorsig konsentreer op gevallepresedente en die sielkundige literatuur in 'n poging om die hoofkriteria te beskryf waarop besluite aangaande voogdyskap gebaseer is. Verskille in die veronderstellings van persone in hierdie twee professies word uitgelig.

Children's perception and experience of the family advocate system

“…The definition of the concept ''best interests'' and even more so, its determination, therefore evokes divergent opinions as well as heated debate (e.g. Barratt and Burman, 2001;Cumes and Lambiase, 1987;Palmer, 1996;. Consequently the application of the concept is determined to a large extent by the unique circumstances of each case (Galatzer-Levy and Kraus, 1999;Van Heerden et al, 1999).…”

“…This list has since been accepted by several local courts as a valuable guide to the application of the best interests standard. 3 According to a wider and international review of the literature by the present researcher, it appears that particularly the following criteria, briefly summarised below, should be considered in the determination of the best interests of minor children (Bezuidenhout, 2000;Conradie, 1997;Cumes and Lambiase, 1987;Kelly, n.d.;Mason, 2000;Van Heerden et al, 1999;) 4 : * Age of the child. This criterion refers mainly to the ''tender years'' tradition where the custody of younger children, and especially daughters, is preferably awarded to the mother.…”

“…Psychological literature emphasises the importance of this criterion in contrast to lawyers who regard it as important theoretically, but seldom attach value to it in practice. Cumes and Lambiase (1987) identify the age of 12 years as a very arbitrary line of demarcation for taking children's wishes into account. * Support systems.…”

Parents’ perception and experience of the family advocate system

“…At present there is wide acceptance that both parents have the ability to fulfil both parental roles, that is, that mothering forms a component not only of the mother, but also of the father (Cumes and Lambiase, 1987; Van der Linde vs. Van der Linde, 1996). However, it would appear that South African courts continue to show preference to maternal custody, especially if the children are young and it is found that their interests would best be served if they are placed in the care of the mother (Cronje´and Heaton, 1999;Pretorius, 1997;Robinson, 2000;Van Rensburg, 2001;Van Zyl, 1997).…”

A Thematic Content Analysis of Psychologists' Reports in Child Custody Evaluations

“…While judges were disinclined to interview children, psychologists argued it to be in children's best interests to have a forum to express their views. In a follow-up study, Lambiase and Cumes (1987) similarly found differences in the weight accorded the criteria by these professionals. While mental health professionals were more cognisant of the child's needs and feelings, legal professionals took parental needs and capacities into account, suggesting that the differences may be related to the work contexts of these professionals.…”