|
Going into a divorce, most parents will attest that the needs of the child come first. Unfortunately, that is often where there are disagreements. Both parents may have dramatically different ideas of what is in the child’s best interest. That is why you need an experienced family law attorney on your side to advocate for you and protect your relationship with your child.
|
Parental Rights and Responsibilities and Custody
The implementation of the Children’s Act, Act 38 of 2005 has changed the terminology previously used in respect of children. It has also defined the parental rights and responsibilities that parents or other parties may have. There are many ways for persons to acquire parental responsibilities and rights over children, all regulated by the Children’s Act. Biological parents acquire these rights automatically, but different rules apply for biological mothers, married fathers and unmarried fathers. The Act also automatically assigns parental responsibilities and rights in respect of children conceived by way of artificial insemination.
Parental rights and responsibilities
‘Parental rights and responsibilities’ is the umbrella term for the rights and responsibilities a person may have in respect of a child. These include all or some of the elements of guardianship, care, contact and maintenance. A holder of full parental rights and responsibilities has the right and responsibility to:
More than one person may have parental rights and responsibilities; they are referred to as co-holders. The Act allows courts to grant any person parental rights and responsibilities, even in the absence of a biological or legal relationship between the adult and child. The holder or co-holder of parental rights and responsibilities must always act in the best interests of the child, while also taking into account the child’s wishes. With the implementation of the Children’s Act, the term ‘custody’ has been replaced by the concept of ‘care’. The Act states that care, in relation to a child, and where appropriate and within available means, includes:
Parental rights and responsibilities
‘Parental rights and responsibilities’ is the umbrella term for the rights and responsibilities a person may have in respect of a child. These include all or some of the elements of guardianship, care, contact and maintenance. A holder of full parental rights and responsibilities has the right and responsibility to:
- care for the child;
- maintain contact with the child;
- act as the guardian of the child; and
- contribute to the maintenance of the child.
More than one person may have parental rights and responsibilities; they are referred to as co-holders. The Act allows courts to grant any person parental rights and responsibilities, even in the absence of a biological or legal relationship between the adult and child. The holder or co-holder of parental rights and responsibilities must always act in the best interests of the child, while also taking into account the child’s wishes. With the implementation of the Children’s Act, the term ‘custody’ has been replaced by the concept of ‘care’. The Act states that care, in relation to a child, and where appropriate and within available means, includes:
- providing the child with a suitable place to live;
- providing living conditions that are conducive to the child’s health, well-being and development;
- providing the necessary financial support;
- safeguarding and promoting the child’s well-being;
- protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
- respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and principles set out in Chapter 2 of the Act;
- guiding, directing and securing the child’s education and upbringing, including religious and cultural education, in a manner appropriate to the child’s age, maturity and stage of development;
- guiding, advising and assisting in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
- guiding the behaviour of the child in a humane manner;
- maintaining a sound relationship with the child;
- accommodating any special needs that the child may have; and
- ensuring that the child’s best interests are the overriding concern in all matters affecting the child.
-
Biological mothers
-
Married biological fathers
-
Unmarried biological fathers
-
Artificial Insemination
<
>
The biological mother, whether married or unmarried, has full parental responsibilities and rights in respect of her child. She is granted these rights automatically solely on the fact that she has given birth to the child.
The biological father of a child has full parental responsibilities and rights in respect of the child, if:
- he is married to the child’s mother;
- he was married to the child’s mother at the time of the child’s conception or birth, or at any time between the child’s conception and birth; or
- he is or was married to the child’s mother at any time after the birth.
Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:
- at the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married. ;
- regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and
- he contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.
Artificial insemination is the introduction by any means other than natural of male gametes into the internal reproductive organs of a female for purposes of human reproduction. The rules relating to the status of a child born from artificial insemination are as follows:
- Where a married woman is impregnated with the gametes of her husband, the child will be regarded as having been born of married parents. Thus the biological mother and her husband, the biological father of the child will have full parental responsibilities and rights in respect of the child.
- Where a married woman is impregnated with the gametes of a third party donor with the consent of her spouse, the child will be regarded as having been born of married parents. In this instance the biological mother and her spouse (albeit husband or wife) will have full parental responsibilities and rights in respect of the child.
- Where a single woman undergoes artificial insemination, the child is regarded as hers alone.
Guardians and caregivers appointed in a will
Biological mothers, biological fathers who qualify to have parental responsibilities and rights and any other holder of full parental responsibilities and rights are guardians of children. These guardians may appoint a third party or third parties to act as a child’s guardian(s).
A parent who is the sole guardian may appoint a fit and proper person as guardian of the child, or to care for the child, in the event of his/her death. The parent must include this appointment in his/her will. It will only come into operation if the parent dies and if the appointed guardian expressly accepts the appointment. The parent can appoint more than one guardian.
Parents who are or have been married to each other, or who have never been married but the biological father qualifies to have parental responsibilities and rights, are co-guardians unless a court has awarded one of the parents sole guardianship to the exclusion of the other. Upon the death of either of the parents, the other usually becomes the sole guardian. An appointed guardian or care-giver cannot ordinarily oust the surviving parent as guardian.
Parents who retain joint parental rights on divorce are co-guardians, so if one dies, their ex-spouse automatically obtains care of the child. If the deceased has nominated someone else in their will to have care or guardianship, their ex-spouse will have to agree to relinquish his/her rights or share such rights before the provisions of the will can take effect. However, the court will always look at what is in the child’s best interests. If the ex-spouse is an unfit parent, the court may well afford care or guardianship to any other person who applies. Factors that courts consider when someone other than a biological parent applies for care and guardianship are discussed in more detail below.
If the only surviving spouse dies, the person he/she has appointed as the ‘sole natural guardian’ will be vested with the care of the child and acquire full parental responsibilities and rights upon acceptance of the appointment. If the will of the deceased makes no mention of the child’s personal care, the appointment of a guardian may entitle that person to care for the child.
The child’s views must also be taken into account in any decision regarding the appointment of a caregiver or guardian. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be taken into account. With younger children, a skilled legal representative working together with a child psychologist or social worker can convey the child’s views and wishes to the court, and make recommendations on what they believe will be in the child’s best interests.
Guardians and caregivers appointed by court order
In terms of the Act, anyone who has an interest in the care, well-being or development of a child may apply to a competent court (and not only the High Court) for an order allowing contact with or care of the child. Whenever a court considers such an application, it must take cognisance of:
Any person may bring such an application, including grandparents. The Act also states that the granting of care or contact by a court does not necessarily affect parental responsibilities and rights that any other person may have in relation to the child. For example, if an unmarried father obtains rights in respect of his child, the mother of the child does not lose her rights. Their parental responsibilities and rights are to be shared.
Similarly, in terms of the Act, any person with an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship. When considering such an application, the court must take the following factors into account:
Disputes
If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.
There are several possible outcomes of such a mediation:
If the parties are unable to reach settlement on whether the father satisfies the criteria or not, the family advocate will issue a statement of the outcome of the mediation. The parties may then approach the Court for adjudication of the issues. If the matter is brought to the Court, the court will usually refer the matter to the family advocate for investigation.
If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.
If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate will then assist them.
If either party does not attend the mediation, the family advocate will issue a confirmation of non-attendance and an aggrieved party can lodge an application to court.
Biological mothers, biological fathers who qualify to have parental responsibilities and rights and any other holder of full parental responsibilities and rights are guardians of children. These guardians may appoint a third party or third parties to act as a child’s guardian(s).
A parent who is the sole guardian may appoint a fit and proper person as guardian of the child, or to care for the child, in the event of his/her death. The parent must include this appointment in his/her will. It will only come into operation if the parent dies and if the appointed guardian expressly accepts the appointment. The parent can appoint more than one guardian.
Parents who are or have been married to each other, or who have never been married but the biological father qualifies to have parental responsibilities and rights, are co-guardians unless a court has awarded one of the parents sole guardianship to the exclusion of the other. Upon the death of either of the parents, the other usually becomes the sole guardian. An appointed guardian or care-giver cannot ordinarily oust the surviving parent as guardian.
Parents who retain joint parental rights on divorce are co-guardians, so if one dies, their ex-spouse automatically obtains care of the child. If the deceased has nominated someone else in their will to have care or guardianship, their ex-spouse will have to agree to relinquish his/her rights or share such rights before the provisions of the will can take effect. However, the court will always look at what is in the child’s best interests. If the ex-spouse is an unfit parent, the court may well afford care or guardianship to any other person who applies. Factors that courts consider when someone other than a biological parent applies for care and guardianship are discussed in more detail below.
If the only surviving spouse dies, the person he/she has appointed as the ‘sole natural guardian’ will be vested with the care of the child and acquire full parental responsibilities and rights upon acceptance of the appointment. If the will of the deceased makes no mention of the child’s personal care, the appointment of a guardian may entitle that person to care for the child.
The child’s views must also be taken into account in any decision regarding the appointment of a caregiver or guardian. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be taken into account. With younger children, a skilled legal representative working together with a child psychologist or social worker can convey the child’s views and wishes to the court, and make recommendations on what they believe will be in the child’s best interests.
Guardians and caregivers appointed by court order
In terms of the Act, anyone who has an interest in the care, well-being or development of a child may apply to a competent court (and not only the High Court) for an order allowing contact with or care of the child. Whenever a court considers such an application, it must take cognisance of:
- the child’s best interests;
- the relationship between the applicant and the child, and between any other relevant person and the child;
- the degree of commitment that the applicant has shown towards the child;
- the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child;
- the relationship between the child and the person whose parental responsibilities and rights are being challenged, if applicable; and
- any other factor that should, in the court’s opinion, be taken into account.
Any person may bring such an application, including grandparents. The Act also states that the granting of care or contact by a court does not necessarily affect parental responsibilities and rights that any other person may have in relation to the child. For example, if an unmarried father obtains rights in respect of his child, the mother of the child does not lose her rights. Their parental responsibilities and rights are to be shared.
Similarly, in terms of the Act, any person with an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship. When considering such an application, the court must take the following factors into account:
- the child’s best interests;
- the relationship between the applicant and the child, and any other relevant person and the child; and
- any other fact that should, in the court’s opinion, be taken into account.
Disputes
If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.
There are several possible outcomes of such a mediation:
- the parties cannot agree on whether or not the father meets the criteria;
- the parties agree that the father does not meet the criteria and the mother is not prepared to grant him any parental responsibilities and rights;
- the parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental responsibilities and rights by means of a parental responsibilities and rights agreement;
- the parties agree that the father has parental responsibilities and rights and agree on a parenting plan; or
- the parties agree that the father has parental responsibilities and rights but cannot agree on a parenting plan.
If the parties are unable to reach settlement on whether the father satisfies the criteria or not, the family advocate will issue a statement of the outcome of the mediation. The parties may then approach the Court for adjudication of the issues. If the matter is brought to the Court, the court will usually refer the matter to the family advocate for investigation.
If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.
If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate will then assist them.
If either party does not attend the mediation, the family advocate will issue a confirmation of non-attendance and an aggrieved party can lodge an application to court.
