Enforcing parental responsibilities and rights
A consequence after the birth of a child is that a parent gains certain responsibilities to maintain the child (through child maintenance), and rights to exercise contact with the child, care for the child, and act as guardian of the child.
If you feel that your parental rights are infringed (eg, you are prevented from exercising your rights of contact with the child or the other parent is not acting in the best interests of the child), then you may approach the Children’s Court with an application in terms of which your parental rights are enforced.
National and international child abduction
If a parent or even someone else removes a child from the province or country in which the child lives, without the consent of the other parent, then this is known as child abduction. In most instances where the consent of the other parent was not given and the child is removed to another place, is deemed to be wrongful. South Africa is a party to The Hague Convention, which is an international agreement to prevent the unlawful removal of a child without the consent of the other parent and by making an application in terms of The Hague Convention, it is a mechanism to obtain the return of a child wrongfully removed.
Relocation of the minor child (guardianship)
A guardian is required to consent to any matter where the Children’s Act requires that consent be given on behalf of a child. The most common form where the consent of both parents is needed are the relocation of a child to another province or another country, the enrolment of a child in a particular school, the issuing of a passport in respect of a child, and representing a child in any legal matter that the child might become a party to. In practice we see many difficult guardians refusing these types of consent just to be spiteful and a court is then approached to overrule the requirement that consent be given.
Relocation of the minor child
The occurrences of disputes relating to relocation of children outside of South Africa is ever increasing. If the other parent refuses consent (as is required by law) to the relocation of a child, then it is possible to obtain an Order in terms whereof the need for consent by the refusing parent, is dispensed with.
A parent who is the primary caregiver, has the right to relocate a child within South Africa in most cases (if it is in the best interest of the child), with the knowledge and consent of the other parent. If attempts at negotiating settlement are exhausted, then similarly, an application can be made to our Courts for an Order dispensing with the need of the refusing parent’s consent.
Rights of unmarried fathers and disputed paternity
The Children’s Act 38 of 2005 has advanced the position of unmarried fathers who want to be involved in their children’s lives. By virtue of certain acts he can claim full parental rights and responsibilities whereas a father who was married to a child’s mother at the time of conception automatically enjoys full parental responsibilities and rights.
An unmarried father can apply for parental rights if he was living with the mother of the child at the time of birth, if he agrees to be identified as the child’s father or if he contributes or has attempted to contribute to the expenses of the child (paying child maintenance).
If the unmarried father’s details are not recorded on the child’s birth certificate, then an application can be made for the birth certificate to be amended so as to record his details.
It is important to note that a father who elects not to apply for parental responsibilities and rights, is still obliged to maintain the child by paying child maintenance even though he has no parental rights or responsibilities.
Parenting plans
A parenting plan is a written agreement in terms of which the co-holders of parental responsibilities and rights reach agreement on the manner in which they exercise their responsibilities and rights – with other words, how they intend to raise the child(ren) and how each of the parties will be involved. The importance of a well drafted Parenting Plan cannot be understated as it eliminates acrimonious disputes between the parents and sets clear guidelines on how the child(ren) will be raised and what is expected from the other parent.
A signed parenting plan must be made an Order of Court in order to ensure that the rights of each co-parent are protected.
Care (custody)
Prior to the new Children’s Act 38 of 2005, the terminology “custody and access” were used. Now those terms have been eliminated and have been extended to include ‘parenting responsibilities and rights’, which include the responsibility to care for the children and the responsibility and the right to maintain contact with the children.
The parent who is granted custody (care) of a child, is responsible for seeing to the day-to-day life of the child, and is obliged to ensure that the wellbeing of the child is safeguarded and promoted and that the best interests of the child are at all times considered of paramount importance.
After a divorce or separation there is always potential for dispute between as to which parent is to be a custodian. One of the parents will have a primary residence and be the primary caregiver of a child (this was previously referred to as custody). The other parent will be entitled to exercise contact (access) with the child. If parents are unable to reach an agreement regarding their minor children, the court will make a decision after considering the recommendations of the Family Advocate and the evidence of experts like psychologists and social workers. The paramount principle guiding the court in reaching a decision is always the best interests of the minor children.
Contact (access)
Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent(s) or a person other than the child’s parent(s) (such as a grandparent) can obtain the right to contact a child, provided that the contact is in child’s best interests.
Any person who has an interest in the care, well-being or development of a child, may apply for the right to contact such a child via our Courts. The Court will consider a number of factors when determining whether the requested rights of contact are to be granted.
It is a criminal offence for the custodian parent(s) to unreasonably refuse or prevent another person from having contact with the child if an such an order exists.