MINOR CHILD

Following the birth of a child, a parent gains responsibilities to contribute to the maintenance of the child, and rights to exercise contact with the child, care for the child, and act as guardian of the child. A third party who has a relationship with a child, can approach our Courts in making application for assignment of co-parental responsibilities and rights to a child.

If your parental rights are frustrated (for example, you have been 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 are able to approach our Courts with an application in terms of which your parental rights are enforced. 

If your parental rights are not defined, then by the same token, you can make an application in terms of which your rights are defined (and in this way, you can then ensure the upholding of your rights, if your rights are frustrated).

If a parent or a third party 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.  Because the consent of the other parent was not given, then automatically the removal of the child, is deemed to be wrongful.  Fortunately South Africa is a party to The Hague Convention, which is essentially an agreement in place to prevent the unlawful removal of a child without the consent of the other parent.  Making application in terms of The Hague Convention, is a mechanism to obtain the return of a child wrongfully removed.

A guardian is required to consent to any matter where the Law requires that consent be given on behalf of a child.  This includes 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 the same way that a guardian is required to consent, a guardian can elect not to consent, and can refuse to give consent if there are grounds justifying the withholding of consent.

In certain situations, it may be necessary to grant co-parental responsibilities and rights to a third party.  Similarly, a third party who has a relationship with a child, can approach our Courts in making application for assignment of co-parental responsibilities and rights to a child. The third party who is assigned responsibilities and rights need not necessarily be a family member.

Section 18 of the Children’s Act 38 of 2005 states that the parental responsibilities and rights in respect of a child include the responsibility to contribute to the maintenance of a child.

Maintenance includes the reasonable provision of contributing towards the cost of housing, education, clothing, food and medical care, and related ancillary expenses.  Up until the age of 18, maintenance is generally paid into the banking account of the custodian parent.  After the age of 18, maintenance is generally paid directly to the (adult) child.

There is a duty on both parents to maintain a child according to their respective means and the circumstances and needs of the child.  This duty to support does not cease when the child reaches the age of majority (18 years) but usually ceases when the child becomes self-supporting.  A parent’s responsibility and right to apply for maintenance on behalf of a minor child ceases when the child becomes a major, namely 18 years of age. After the age of 18, a child is deemed to be old enough to bring an application for maintenance in his or her own name.

If a major child ceases to be self-supporting for reasons such as ill-health or disability, the duty to maintain may be revived.

Our Courts will rely on an interpretation of self-sufficiency, when determining if the parents’ duty to contribute can be extinguished.  Major children are not maintained as extensively as minors and the reasonableness of the parent’s duty to maintain such a child is an essential factor which is considered.  In certain circumstances, the duty to maintain children may include the duty to provide tertiary education. Our courts consider the parent’s financial circumstances, social status and the child’s academic aptitude and achievements to determine whether there is a duty to provide tertiary education.

A major child who wishes to further his or her studies or has no other form of income must be maintained by both parents, until such a child earns an income and becomes self-supporting, if the parents are in a financial position to do so.

The incidence of disputes relating to the relocating of a child outside of South Africa, is ever increasing.  If the other parent refuses to consent to the relocation of a child, then it is entirely possible to obtain an Order out of our Courts, in terms of which the need for consent by the refusing parent, is dispensed with. Our legal team is experienced and skilled at dealing with matters of this nature, and will first endeavour to negotiate a favourable settlement in terms of which the best interests of the child are upheld and the parental responsibilities and rights are both parents are balanced, and protected.

A parent who is the primary caregiver, has the right to relocate a child within South Africa in most cases, 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.

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 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.

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.

A father who elects not to apply for parental responsibilities and rights, is obliged to maintain the child.

Once a child has been adopted, then the adopting parent/s are assigned all parental responsibilities and rights of the birth parents, pre adoption.  The legal relationship between the child and the birth parents is terminated, once the adoption is formalized, after which time, our Law grants the adopted child the same rights and privileges that the child would be entitled to, if he or she was born of the adopting parents.

The adoption process can be protracted with much complexities.

A parenting plan is an agreement in terms of which the co-holders of parental responsibilities and rights reach agreement on the manner in which exercise their responsibilities and rights. An attempt at settling a dispute amicably between the parties as regards the exercising of the responsibilities and rights, should be make prior to resorting to our Courts to give determination.

A signed parenting plan must be made an Order of Court in order to ensure that the rights of each co-parent are protected.

The parent who is granted Custody 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.

There is always potential for dispute between parents at the time of a divorce or a separation if the parents are not in agreement 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. Any dispute dealing with the custody of a child, must be settled on the basis of what is best for the child.  This is referred to as the best interests of the child.

Steps must be taken with swift to prevent conflict between the parties on the issue of Custody destabilizing the child and to ensure that the child is not affected by the dispute.

In addition to the human rights as contained in our Bill of Rights, children have additional and special rights of care and protection.  If there is a concern that the current custody arrangements of a child place a child at risk of any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour, then similarly steps must be taken to remove the child from danger, and to protect the child.

With the rise of infertility, the use of surrogates is on the increase.

If you are planning to make use of a surrogate then you are obliged to have a written agreement in place and to have such agreement made an Order of Court prior to fertilization by artificial insemination.  An agreement which is not made an Order of Court, is invalid.  The requirements as contained in The Children’s Act in respect of surrogate motherhood agreements, must be satisfied.

The artificial insemination of the surrogate mother must also be specifically authorised by the Court which confirms the surrogate motherhood agreement.

The Agreement must make provision for the contact, care, upbringing and general welfare of the child.

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 would serve in the 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, including but not limited to the best interests of the child, the nature of the personal relationship between the child and the applicant.

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 Order exists.