Parental Rights and Custody of a Minor Child
A child in terms of the Children’s’ Act 38 of 2005, is a person under the age of 18 years
The Act envisages that when a decision is made regarding any issue that would affect the child, it is important to take into account the principle of “in the best interest of the child”.
Section 7 of the Children’s Act requires the “best interest of the child” to be applied with the following factors to be taken into consideration:
- The nature of the personal relationship between the child and the parents
- The personal relationship between the child and any other care-giver
- The attitude of the parents towards the child and the exercise of parental responsibilities and rights in respect of the child
- The capacity of the parents or any other care-giver or person to provide for the needs of the child, including emotional and intellectual needs
- The likely effect on the child when there is any change in the child’s circumstances, including the effect of separation from both or either of the parents on the child
- The child’s age, gender, background and other relevant circumstances
Definition of the term Custody:
“The legal right to take care of a child and have direct responsibility over the child”.
Types of Custody
This refers to having exclusive physical and legal custody rights over the child. Sole custody means that the custodial parent will be solely responsible for the upbringing and care of the child.
This refers to both parents having physical and legal custody over the child. Physical custody means that the parents have the right to live with the child and legal custody means that both parents will be responsible for the upbringing of the child.
South African Courts view on Sole and Joint Custody
The courts have found that Sole Custody is detrimental to the other parent and is not in the best interest of the child to have only one parent involved in his/her upbringing. It is for this reason, that Sole Custody is awarded in cases where one parent is abusive towards the child, or a parent is regarded as an unfit parent.
It is important to note that Sole Custody does not mean that a parent who has been declared the unfit parent may not have access and visitation rights, in most circumstances, access and visits would be granted but under strict supervisions.
Joint Custody may seem desirable, however, for the child to have two permanent homes in cases where the parents live substantially apart, is not in the best interest of the child.
Most often, the courts will grant Joint Legal Custody to both parents, in which equal rights as far as making decisions on the upbringing of the child, are shared. Physical Custody is awarded to one parent on the notion that the other parent has access and visitation rights.
Application for guardianship
The process of parents separating/divorcing is extremely stressful not only on the parents and close family and friends, but most importantly on the child/children.
In cases where parents cannot come to an agreement regarding the care of their child, a parent can bring an application to court, requesting a parenting order.
Usually the courts will refer the matter for counselling and mediation first in order for the parties to reach an agreement. If the parties reach an agreement, the agreed arrangements will be reduced to writing and made an order of court. The order will be legally binding on both parents and is enforceable in the same way as any other court order.
If the parties do not agree and counselling has failed, the court may look into granting a parenting order. This application is made to court on the prescribed form with the assistance of an attorney and all relevant Legislations and Court Cases will be taken into consideration.
Factors taken into consideration when granting Guardianship
The court will not automatically assume that the child is better off with his or her mother rather than the father, or the other way around. The court will look at what is best for that particular child in the particular situation.
The court will take into account a number of specific issues when deciding what is best for the child, including:
- the need for the child’s parents and guardians to take the main responsibility for looking after them
- the need for continuity in the arrangements for looking after the child
- the need to maintain and strengthen the links between the child and their family or other wider family groups
- the need for co-operation between parents, guardians and others who are involved in looking after the child
- the need to keep the child safe at all times
- the need to preserve and strengthen the child’s identity, including their culture, language and religion
NOTE: If the court decides to grant Guardianship to one of the parents, it does not mean that the other parent may not have parental rights and right to access.
A parent may obtain the right to have access to his/her child. This means that the parent who does not hold full guardianship over her/his child can apply for access. Parents can come to an agreement concerning the days/weekends/holidays, that are given to the parent that has access.
In cases where a parent is denied access, an application can be made to court to obtain right of access and not to be denied access by the parent who has custody of the child.
The following factors will be considered when an application for parental rights is made:
- the best interest of the child
- The relationship between any other person and the child, such as the mother
- The relationship between the unmarried father and the child
- The degree of commitment the unmarried father has shown towards the child
- Any other factor the court considers to be relevant
In terms of section 35 of the Children’s Act, any person having care or custody of a child may not refuse the other parent the right to exercise the right to access and/or parental rights. Such person will be guilty of an offence and will be liable for a fine or imprisonment not exceeding one year.
Let Yambu protect you today with affordable Legal Protection. With Yambu Legal protection you will always have access to affordable legal advice. This protection will also give you access to life cover while covering your conveyancing fees as an added benefit www.yambu.co.za
Children’s Act 38 of 2005