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where the parents cannot even agree on matters while they are married.
Discuss fully, with reference to authority, whether Mrs Nel's statement is
true.
FEEDBACK
It is true that our courts in the past were hesitant to make joint custody
awards. The risk of parental conflict and disagreement is frequently used
as an argument against joint custody. It is also argued that one parent
should control the child's life, so that the child will know where he or she
stands. Another objection to joint legal custody is that, as it does not
involve sharing of day-to-day care of a child, it puts the care-taking parent
in a position of responsibility without power, whilst giving the noncaretaker
parent (usually the father) power without responsibility.
In the most recent reported decision on joint custody, namely Krugel v
Krugel, the court rejected the arguments against joint custody on the
ground that they do not serve the child's best interests. The court stated
that a more liberal approach to granting joint custody might be
appropriate in view of the changing roles and responsibilities of parents,
and the concept of children's rights within the family. The court
specifically rejected hostility between parents as a bar to joint custody.
It was also held that, as long as both parents are fit and proper persons,
they should have equal say in their child's upbringing, and that the court
has to consider whether input from both parents, even if that input is at
times disharmonious, is not preferable to an uninvolved parent.
The court made the following important remark: [U]nless the disagreement
is of such a nature that the child is put at risk either physically or
emotionally, it still seems preferable for the child to learn to deal with the
ups and downs of two involved parents, than to lose half of his or her
rightful parental input.
The court concluded that joint custody promotes the rights of children,
and also helps to establish sex equality by reshaping gender roles within
parenthood.
Cronje and Heaton support joint custody and submit that the court
should, as a rule, not make an order for joint custody if one of the parents
has committed, or threatens to commit, domestic violence against the
other parent.
In light of the decision in Krugel, it however appears that the courts' initial
unwillingness to grant joint custody orders is changing. Mrs Nel's
statement can therefore not apply unconditionally.
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