The Children’s Act 38 of 2005 now regulates the relationship between children and parents. The terminology has also changed and the law no longer refers to parental power, custody and access, but to parental responsibilities and rights, care and contact.
Source: A simple guide to South African Family Law by Nthabiseng Monareng
Parental responsibilities and rights
In this section, the terminology of guardianship, access and custody is used to make it easier for you to understand.
This is the duty and authority of a parent or other legal guardian to make major decisions affecting a minor child.
A parent or legal guardian who has guardianship of a minor child must:
(a) Administer and safeguard the child’s property and property interests.
(b) Assist or represent the child in administrative, contractual and other legal matters.
(c) Give or refuse any consent required by law in respect of the child, including:
– Consent to the child’s marriage.
– Consent to the child’s adoption.
– Consent to the child’s departure or removal from the Republic of South Africa.
– Consent to the child’s application for a passport.
– Consent to the selling or mortgaging of any immovable property of the child.
If more than one parent or other person has guardianship of the child, each one of them
can exercise his or her parental responsibilities without the consent of the other parent or legal guardian. In respect of the matters listed in (c) above, however, the consent of all the persons who have guardianship of the child is required, unless a court orders differently. It is important that parents consult each other when dealing with issues relating to their child.
This refers to a parent’s right to have the child reside with him or her and to control and supervise the daily life of the child.
· Couples going through a divorce have to decide who will get custody of the child after divorce. This decision must be made in the best interests of the child. The court often gives custody of young children to the mother, but if it is in the best interests of the child, custody will be given to the father.
· When one parent has custody of a child and the other parent is not happy with the way the child is being raised, the non-custodian parent can apply to the High Court for custody of the child. The court will grant this application only if this is in the best interests of the child.
Joint custody (joint care)
This is when both parents share custody of the child.
Advantage of joint custody
· This allows both the parents to remain involved in decisions concerning the day-to-day life of the child.
Disadvantages of joint custody
· The parents may not agree on how to raise the child and this may cause conflict between the two of them, which may affect the child.
· The child may have to live with both parents, for example, this week with the father, next week with the mother. This will cause instability in the child’s life.
Access refers to the situation where a parent who does not have custody sees and spends time with his or her child. Every parent who does not have custody of his or her child has a right to have access to the child. The details of how this access is structured must be agreed between the parents or, if they cannot agree, ordered by the court. Access should be denied only if it is not in the best interests of the child.
Children’s Act 38 of 2005
The Children’s Act brought about new law and requirements regarding the relationship between parents and children. In terms of the Act and the South African Constitution, the best interests of the child are still the key consideration in all matters affecting the child.
Best interests of the child
Below are some of the factors the law considers important in assessing the best interests of the child:
· The nature of the personal relationship between the parent and the child.
· The attitude of the parents towards the child.
· The exercise of parental responsibilities and rights in respect of the child.
· The likely effect on the child of any changes in the child’s circumstances, including the likely effect on the child of any separation from either or both parents, or from siblings or any other person with whom the child has been living.
· The practical difficulty and expenses of a child having contact with the other parent.
· The child’s age, maturity and developmental stage and his or her physical and emotional security.
· The needs of the child, including the child’s needs to be brought up in a stable family environment or, when this is not possible, in an environment like that of a caring family.
Parental responsibilities and rights
A parent has full or specific parental responsibilities and rights in respect of a child. These include:
· To care for the child.
· To maintain contact with the child.
· To act as guardian of the child.
· To contribute to the maintenance of the child.
Parental responsibilities and rights of mothers
The biological mother, whether married or unmarried, has full parental responsibilities and rights in respect of a child.
Parental responsibilities and rights of fathers
The biological father of a child has full parental responsibilities and rights under the following circumstances:
(a) If the father is married to the child’s mother.
(b) If the father was married to the child’s mother at:
– The time of the child’s conception, or
– The time of the birth of the child, or
– Any time between the child’s conception and birth.
The unmarried biological father can have full parental responsibilities and rights under the following circumstances:
(a) When at the time of the child’s birth he is living with the mother in a permanent cohabitation relationship.
(b) If the mother of the child enters into an agreement with the father that he has full or some parental responsibilities and rights in respect of the child. This agreement takes effect only if it is registered with the family advocate or made an order of court.
(c) When he has:
(i) consented and identified himself as the father of the child, or paid damages in terms of customary law; and
(ii) tried in good faith to contribute to the upbringing of the child for a reasonable period; and
(iii) contributed or tried in good faith to contribute to the maintenance of the child for a reasonable period.
When unmarried biological parents do not agree on whether the father has satisfied the requirements listed in (c)(i), (ii) and (iii) above, the matter must be referred for mediation to a family advocate, social worker, social service professional or any other suitably qualified person.
Parents who both have parental responsibilities and rights in respect of a child can enter into what is called a parenting plan. This is an agreement between parents that determines their individual roles in respect to responsibilities and rights over the child.
In the parenting plan, parents can agree on the following:
· Where and with whom the child is to live.
· The maintenance of the child.
· Contact between the child and each parent or any other person.
· The schooling of the child.
· The religious upbringing of the child.
Formalities of a parenting plan
· It must be in writing.
· It must be signed by both parents.
There are two situations in which a parenting plan arises:
1. Where the parents are not experiencing difficulties in exercising their parental responsibilities and rights:
– Parents can seek the assistance of any suitable third party or draft the parenting plan on their own. The parenting plan must be in the best interests of the child and also not prejudice either of the parents.
– If the parents wish, the plan may be registered with a Family Advocate or made an order of court. The application for registration must be in the prescribed format, contain certain prescribed particulars, and be accompanied by a copy of the plan.
2. When the parents are having difficulties in exercising their parental responsibilities and
– Before asking a court to intervene, the parents must try to agree on a parenting plan.
– Parents must get the assistance of a Family Advocate, social worker or psychologist when drafting the parenting plan.
– If the parents wish, they may apply for the parenting plan to be registered with a Family Advocate or made an order of court. The application must be in the prescribed format, contain the prescribed particulars, and be accompanied by a copy of the plan and a statement by the professional who assisted the parents in preparing it.
Interference with parental rights
When a parent refuses or prevents the other parent from exercising his or her parental responsibilities and rights:
· The parent who has been prevented from exercising his or her parental responsibilities and rights, must lodge a complaint at the Children’s Court.
· The Act states that a parent who has custody of a child and refuses the other parent access to that child or refuses to let that parent exercise his or her parental responsibilities and rights, or a parent who breaches a parenting plan agreement, is guilty of an offence and is liable on conviction to a fine or imprisonment not exceeding one year.
Matters the Children’s Court may deal with
· The protection and well being of a child.
· The care of a child (custody).
· Contact with the child (access).
· Paternity of the child.
· Support of the child.
· Maltreatment, abuse, neglect, degradation, or exploitation of a child.
· The temporary safe care of the child.
· Any other matters relating to the care, protection or well being of children, as provided for in the Children’s Act.