Parents have an inherent right and duty to form part of their child’s lives. Here we refer to parental rights and responsibilities. However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interests. More often than not, when parents are divorced, separated, or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children.
These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights.
The terms used to refer to the rights and responsibilities of parents to their children are referred to as “parental responsibilities and rights”. Parental responsibilities and rights are defined in the Children’s Act.
Section 18 of the Children’s Act of 38 2005 (the Children’s Act) states the following:
18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a
child, include the responsibility and the right-
(a) to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute to the maintenance of the child.
Not going into too much detail, all parents of children should by default have certain parental responsibilities and rights to their children. It often happens that parents who are co-holders of parental responsibilities and rights, are unable to agree on how their rights should be exercised. Should that happen, then according to section 33 and 34 of the Children’s Act, they should try to agree on a parenting plan.
Basically, they should see an expert like a social worker, or psychiatrist to assist them in resolving the issues they have. As long as the person is suitably qualified, they may make use of their services. They may even approach the Office of the Family Advocate. Should all go well, a parenting plan would be drafted and entered into. This parenting plan may either be registered with the Office of the Family Advocate, or made an Order of Court.
If parents cannot agree on a parenting plan, then a court may have to be approached. Usually they would approach the High Court, or the Children’s Court in their area of residence. In South Africa, one does not have to make use of legal representation. In other words, you may represent yourself in Court. Many times, you do not have a choice as you cannot afford legal representation.
Each magisterial area has a children’s court dealing with Children’s matters. The Children’s Court would be best suited for parents who would prefer to conduct their own case. When you approach the children’s court, they provide you with forms to fill in. They would basically assist you with the process. They will issue a summons / notice to the other parent to appear at Court. Many attorneys also make use of the Children’s Court, as opposed to the High Court, when enforcing their client’s parental responsibilities and rights.
Each province has a High Court. The Court procedure in the High Court is much more complicated than that of the Children’s Court. If you can afford an attorney, and an advocate, they the High Court is another option. Specific documentation needs to be drafted. One is called a Notice of Motion, and the other, a founding Affidavit.
There are various pertinent issues the court looks at when deciding how contact or visitation should be exercised. Each case is unique. In this article, we will list factors that may limit your exercising of your parental right of contact or care. They are:
The Court (Children’s Court as well as the High Court) would listen to both parents, and any expert appointment. Usually the expert would provide a report. Many times, they are the office of the family advocate or a state appointed social worker. After looking at, and hearing everything, the court would make a decision based on what is in the child’s best interest.
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