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What are the factors that will be considered when deciding who to 'give' the child to?

The court does not award the child to either parent as a child is not a piece of property. What the court decides is to whom to grant the 'custody' of the child (that is, the right to make major decisions concerning the welfare and upbringing of the child) and the 'care and control' of the child (that is, the right to have the child live with you and to make day-to-day decisions concerning the child).

In deciding custody and care and control issues, the paramount or most important consideration is the welfare of the child. 'Welfare' has a wide meaning; it encompasses all aspects of the wellbeing (includes emotional and physical wellbeing) and upbringing (includes the education and religious and moral upbringing) of the child.

Generally, the court will consider the following factors (not in order of importance) in deciding the custody and care and control issues:


(a) the conduct of the parties: the role each parent has played in the child's life and the stability which each of you is able to offer the child will be considered. It should be noted however that adultery by itself will not disqualify a parent from getting custody or access;

(b) the status quo: where the child has grown accustomed to his living environment or attached to a care-giver, the court will try to preserve the status quo for a drastic change may be detrimental to the well-being of the child;

(c) the age of the child: if all factors were equal between the parties, a child of tender years should be with the mother;

(d) sibling bond: siblings should generally not be separated as they can provide a measure of security and stability for each other when their parents live separately;

(e) the wishes of the parents: while the parents' wishes will be considered, their wishes are subordinate to the child's welfare;

(f) the wishes of the child, if the child is of an age to express an independent opinion.

The above factors will not be applied rigidly by the court. The overriding consideration is the welfare of the child, to be considered on all the facts and circumstances of each case.