A QUICK GUIDE PARENTAL RIGHTS AND RESPONSIBILITIES
The parental rights and responsibilities parents have in terms of minor children in South Africa is regulated by the Children’s Act 38 of 2005.
WHAT ARE PARENTAL RIGHTS AND RESPONSIBILITIES?
The parental rights and responsibilities that a person may have in respect of a child are defined by the Children’s Act as follows:
There are various ways in which a person may acquire parental rights and responsibilities, depending on the circumstances, some persons acquire it automatically and others by agreement, a court order or a will.
WHO HAS PARENTAL RIGHTS AND RESPONSIBILITIES?
The following persons acquire full parental rights and responsibilities in regard to a child:
- The biological mother of the child;
- The biological father of the child, if:
- He is/was married to the mother at conception or birth, or anytime in-between.
- The biological father of the child who is/was not married to the mother, but:
- At the time of the birth lived with the mother in a permanent life-partnership,
- Consents to be identified as the child’s father;
- Contributes or attempts to contribute to the child’s upbringing;
- Contributes or attempts to contribute towards the expenses of the child.
In terms of artificial insemination, surrogacy and adoption, there are different laws regulating the applicable assignment of parental rights and responsibilities. Such matters are unique to each circumstance and if you require more information, it shall be advisable to consult with a legal professional in order to understand your rights.
WHO MAY ACQUIRE PARENTAL RIGHTS AND RESPONSIBILITIES?
Any person holding parental rights and responsibilities may enter into an agreement with another person for the acquisition of such rights and responsibilities, subject thereto that the agreement is in the prescribed format, is endorsed by the Family Advocate to be in the best interest of the child concerned and is registered or made an order of court.
Any person who has an interest in the care and well-being of a child may apply to a court for contact with the child or care of the child. This includes grandparents, family members or any other person with an interest, subject thereto that the court shall consider the best interests of the child, the relationship between the party and the child, the degree of commitment shown towards the child, the extent the party has contributed towards the expenses of the child and any other relevant factor.
A party who has sole guardianship or care of a child may appoint a fit and proper person to be vested with guardianship and care in the event of death of the party, provided such appointment is contained in a will and the person accepts the appointment.
HOW ARE PARENTAL RIGHTS AND RESPONSIBILITIES REGULATED WHEN PARTIES DO NOT LIVE TOGETHER?
It is clear that more than one person may hold parental rights and responsibilities in respect of the same child, referred to as co-holders.
Before a co-holder makes any decision, which is likely to significantly change or have an adverse effect on a co-holders exercise of parental rights and responsibilities, due consideration must be given to the views and wishes of that co-holder.
The co-holders may also agree on a parenting plan which sets out how they shall each exercise their parental rights and responsibilities, such as where the child shall reside, maintenance, contact with the other party, schooling, religion etc. The parenting plan must be in writing and registered or made an order of court.
During divorce proceedings it is required by law that adequate provision is made for the parental rights and responsibilities of the parents in respect of the children. Such arrangements must be included in the final divorce order or may be included in a divorce settlement agreement and made an order of court.
Any co-holder or any person having a sufficient interest in the child, may apply to court for the termination, extension, suspension or restriction of the parental rights and responsibilities any person holds in respect of a child.
MISCONCEPTIONS / MYTHS
- “The mother is always awarded primary care/sole guardianship (“custody”)”
It is untrue that courts automatically assign primary care to the mother. There is no law stipulating such bias and such matters are decided based on the child’s best interests and other relevant factors.
- “Children may decide where they want to live when they reach a certain age”
It is a common misconception that children are able to decide with which parent they want to stay at a certain age. Although the views and wishes of a child must be considered, taking into account their age and maturity, the decision always depends on the best interests of the child.
- “If a party does not pay maintenance, they are not allowed contact with the child”
This misconception is not only prevalent but is damaging to the child and other parent. Withholding of contact between a child and parent because of arrear maintenance or no contribution is a serious offense.
If you are owed maintenance, there are other legal remedies available to you.
The above is only a brief summary of parental rights and responsibilities, an attorney is able to provide you with answers to your specific questions and give you the legal advice you require to navigate any parental rights and responsibilities dispute or process with clarity and understanding.
This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).