Child custody and their rights
Overview
In the event that you find yourself in any of the circumstances outlined below, it is imperative that you and your child seek the guidance of a specialized child rights attorney.
ENFORCEMENT OF PARENTAL RESPONSIBILITIES AND RIGHTS
Once a child is born, a parent assumes responsibilities to provide for the child and acquires rights to maintain contact with the child, provide care, and act as a guardian. Our courts allow a third party who has a relationship with the child to apply for co-parental responsibilities and rights to the child.
If your parental rights have been obstructed, such as being denied contact with the child, or the other parent is not acting in the child’s best interests, you may bring an application to our courts to enforce your parental rights.
If your parental rights are not clearly defined, you may make an application to define them. By doing so, you can guarantee the protection of your rights in the event that they are challenged.
Learn More
More Info
Enforcement of Parental Responsibilities and Rights
RIGHTS OF UNMARRIED FATHERS AND DISPUTED PATERNITY
RIGHTS OF UNMARRIED FATHERS AND DISPUTED PATERNITY
The introduction of the Children’s Act 38 of 2005 has advanced the position of fathers who want to be involved in their children’s lives.
A father who was married to a child’s mother at the time of conception enjoys full parental responsibilities and rights.
An unmarried father could 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.
Suppose the unmarried father’s details are not recorded on the child’s birth certificate. In that case, an application can be made for the birth certificate to be amended to register his details.
A father who does not apply for parental responsibilities and rights is obliged to maintain the child.
RIGHTS OF UNMARRIED FATHERS AND DISPUTED PATERNITY
National and international child abduction occurs when a parent or third party takes a child from their province or country of residence without the other parent’s consent. This action is considered wrongful because the other parent did not give their support. Fortunately, South Africa is a signatory to The Hague Convention, an agreement designed to prevent the illegal removal of a child without the consent of both parents. Applying for relief under The Hague Convention provides a mechanism for obtaining the return of a child who has been wrongfully removed.
Granting co-parental responsibilities
For specific situations, granting co-parental responsibilities and rights to a third party may be necessary. Additionally, a third party with a relationship with a child has the right to approach the courts, apply for co-parental responsibilities, and request to be assigned to them. It’s not a requirement for the third party to be a family member.
Visitation
Visitation refers to maintaining a personal relationship with a child who does not reside with the individual seeking contact. This may include spending time with the child, communicating through various means, or simply being able to visit the child.
The right to visitation may be granted to a child’s parent or another individual, such as a grandparent if it is in the child’s best interests. Any person interested in the child’s care, well-being, or development may apply for the right to visitation through the courts.
When deciding whether to grant visitation rights, the court will consider various factors, including the child’s best interests and the nature of the relationship between the child and the individual seeking visitation.
It is considered a criminal offense for a custodial parent to unreasonably refuse or prevent another person from having visitation rights if a court order exists.
Relocation
There has been a rise in disputes over relocating a child outside of South Africa. If one parent refuses to consent to the move, it is possible to obtain a court order dispensing with the need for their consent. Our legal team and child rights lawyers have extensive experience in handling such cases and will attempt to negotiate a settlement that upholds the child’s best interests while balancing and protecting both parents’ rights and responsibilities.
In most cases, the parent who is the primary caregiver has the right to relocate a child within South Africa with the other parent’s knowledge and consent. If attempts at negotiation fail, an application can be made to the court to dispense with the refusing parent’s consent.
ADOPTION
After the adoption of a child, the adoptive parent/s are granted all parental responsibilities and rights of the birth parents before the adoption. The legal relationship between the child and the birth parents is terminated once the adoption is formalized. At this point, our law grants the adopted child the same rights and privileges that he or she would have been entitled to if born to the adopting parents. The adoption process can be lengthy and complex.
GUARDIANSHIP
In accordance with the Law, a guardian’s consent is necessary for any matter that requires approval on behalf of a child. Such issues include relocating a child to another province or country, enrolling a child in a specific school, obtaining a passport for a child, and representing a child in legal proceedings where the child is a party.
Similarly, a guardian has the right to withhold consent if there are valid reasons for doing so.
Parenting
A parenting plan is a formal agreement that outlines how co-parents will exercise their parental responsibilities and rights. Before seeking a court determination, it is advisable for co-parents to attempt to amicably settle any disputes about exercising these responsibilities and rights.
To ensure the protection of each co-parent’s rights, a signed parenting plan must be made an order of the court.
Custody
The parent awarded custody of a child has the responsibility of managing the child’s day-to-day life and ensuring their well-being is protected and promoted. The best interests of the child must always be of paramount importance to the custodial parent.
When parents are unable to agree on which parent will be the custodian of their child, disputes may arise during divorce or separation proceedings. The custodial parent will have primary residence and caregiving responsibilities for the child, while the other parent will have the right to maintain contact with the child. Any dispute regarding child custody should be resolved by a child rights lawyer who considers what is in the best interests of the child.
Taking swift action to prevent parental conflict from negatively affecting the child during custody disputes is essential. Children have additional rights to care and protection beyond those outlined in the Bill of Rights. If there are concerns that the current custody arrangements may put the child at risk of physical or psychological harm from maltreatment, abuse, neglect, degradation, violence, or harmful behavior, steps should be taken to remove the child from injury and protect their safety.
MAINTENANCE IN RESPECT OF THE MINOR CHILD
Section 18 of the Children’s Act 38 of 2005 stipulates that contributing to a child’s maintenance is a parental responsibility and right. Maintenance involves reasonably providing for housing, education, clothing, food, medical care, and related expenses. Typically, maintenance payments are made into the custodial parent’s bank account until the child reaches 18 years old, after which charges are generally made directly to the child.
Both parents must maintain their child according to their means and the child’s needs, which continues until the child becomes self-supporting. Parents can no longer apply for maintenance on behalf of their child after the child reaches 18 years old. If a child cannot support themselves due to illness or disability, the duty to maintain may be revived.
Courts consider the reasonableness of a parent’s duty to maintain a significant child, taking into account their financial circumstances, social status, and the child’s academic aptitude and achievements. In some cases, maintenance duty may include funding tertiary education. If a child is studying or lacks income, both parents are responsible for their maintenance until the child becomes self-supporting, provided the parents are financially capable.
