Can my father move into the house my mother got in the divorce now that she has moved out?

The long answer

In the Bill of Rights, (Section 28) the Constitution says that “every child has the right to basic nutrition, shelter, health care and social services, as well as the right to be protected from maltreatment, neglect, abuse or degradation”.

If you are under eighteen, you are regarded as a child. Both your parents have full parental rights and both must take responsibility for you. The rights laid down in the Children’s Act 38 of 2005 mean that the courts must act in your best interests as a child when making an order, like a divorce order. 

If the divorce order stated that your father must stay in the yard while you and your mother stayed in the house, that order would have been based on what the court decided was in your best interests. When your mother moved out, your father had the right to go back to the court and explain that circumstances had now changed and ask the court to amend the divorce order to allow him to move back into the house to look after you. Your father could ask the court to take away some of your mother’s parental rights over you as she had moved out. 

If your father challenged your mother’s parental rights, the court would have to take into account the relationship between you and your mother and how much commitment she had shown towards you. In the end, the court would base its decision on your best interests as a child.

But your father does not have the right to move back into the house with you without having the divorce order changed to allow him to do so. 

Our law respects the rights of children to be heard on any matter affecting them, and your opinions, preferences and wishes must be taken into account by the court. If your father went to court to have the divorce order amended, the court would need to hear whether you are happy for the order to be amended to allow your father to move back into the house with you, before granting the order.  

If you are not happy with your father moving back into the house with you, you have the right to take the matter to court yourself, and you have the right to be helped to do that. You do not need your parents’ permission to go to court. You can go to any magistrate’s court and ask for the Children’s Court, and usually a person working in the Family Advocate’s Office would help you. 

In order to come to a decision about what is in your best interest as a child, the court would need to consider a report from a social worker who would have visited your house and looked into your situation.

You could also contact one of the following organisations for help and advice:

• Child Welfare South Africa

               Tel: 087 822 1516

               Email: national@welfaresa.org.za 

• The Cape Town Child Welfare Society

               Tel: 021 638 3127 

               Email: info@helpkids@org.za

Wishing you the best,
Athalie