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| Title: | Child custody and race in the light of the new South African constitution: a comparative approach |
| Author: | Nöthling-Slabbert, M. |
| Year: | 1995 |
| Periodical: | The Comparative and International Law Journal of Southern Africa |
| Volume: | 28 |
| Issue: | 3 |
| Pages: | 363-382 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | race relations constitutions 1993 guardianship |
| Abstract: | The recent political changes in South Africa, together with the anticipated increase in interracial marriages in this country and the high divorce rate, will lead to an increasing number of children from these marriages becoming involved in custody disputes. The time has therefore come to attempt to determine how the factor of race may and can be dealt with in a modern, civilized legal system. Section 35(1) of the new constitution provides that the courts shall have regard to public international law and may have regard to comparable foreign case law in their interpretation of the South African constitution. A review of American and Canadian case law relating to the application of race in custody proceedings in Canada and the United States reveals that the factor of race itself was seldom viewed for what it really is, namely one of several subdivisions of mankind sharing certain physical characteristics. The list of more important aspects which courts in South Africa have considered in the placement of children include, amongst others, the cultural and religious environment of the child and the financial position of the parties concerned. If these factors are analysed individually, it is clear that the factor of race is indirectly reflected in each of them. Notes, ref. |
