key to the study guide - Name

Mother as custodial
parent
Your textbook further explains on page 163 that in the past the custody of
young or handicapped children and daughters of whatever age, was
generally awarded to their mother. This trend is referred to as the maternal
preference rule. You will, however, see in the textbook that this rule was
rejected in Van der Linde v Van der Linde and Madiehe (born Ratlhogo) v
Madiehe. Study the discussion of these two cases on page 163 of the
textbook. You should also take note of the decision in Ex parte Critchfield
and the third paragraph on page 164 where it is explained that the
rejection of the maternal preference rule is undoubtedly in accordance with
the equality clause in the Constitution.
Limitations In the third-last paragraph on page 164 of your textbook it is explained
that the court may impose limitations on the custodial parent's right of
custody, and also what these limitations entail. The rest of the discussion
on pages 164±166 of your textbook deals with the different types of orders
a court can make regarding custody. You will see that the court may award
sole custody, deferred or postponed custody, split or divided custody, or
joint custody. You have to know what each of these orders entail, and in
what circumstances they are granted.
Joint custody With regard to joint custody you have to distinguish between joint legal
custody and joint physical custody. You will find the meaning of these
terms in the second paragraph on page 165 of the textbook. In your
textbook it is also explained that the circumstances of each case will
determine whether joint custody will be awarded, and what form it will
take. The reasons why the courts in the past were hesitant to make joint
custody awards are briefly mentioned on page 165. The advantages of such
orders are also mentioned. You should also know what the court held in
the most recent reported case on joint custody, namely Krugel v Krugel. This
case is set out on pages 343±346 of your casebook, and is discussed on
page 166 of your textbook. You also need to know the viewpoint of CronjeÂ
and Heaton (the authors of your textbooks) on the granting of joint
custody orders. You will find their viewpoint in the third-last paragraph on
page 166 of your textbook.
206
ACTIVITY
Because Mr and Mrs Nel's conflicting personalities made it unbearable for
them to stay married, Mrs Nel recently sued Mr Nel for divorce. During
thesubsistenceoftheparties'marriagetheyseldomagreedonmattersand
almost never made joint decisions without a dispute. Only one child, a
two-year-old girl, Gerda, was born of their marriage. At this stage, the
parties cannot agree on the various aspects of their divorce. Mrs Nel wants
sole custody of Gerda, while Mr Nel wants joint legal custody. Mrs Nel
informed Mr Nel that he could forget about an order for joint custody,
because our courts are extremely reluctant to grant such orders, especially