CHILD CUSTODY & THEIR RIGHTS

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 and child rights lawyer are 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.