CHILD CUSTODY IN SOUTH AFRICA

WHAT IS CHILD CUSTODY?

The Children’s Act, Act 38 of 2005 refers to Parental Rights and Responsibilities. This term is used to describe a parent or guardian’s rights and responsibilities towards a child. If a person has full parental rights and responsibilities, the person will have the right and responsibility to:

• care for the child;
• maintain contact with the child;
• act as guardian of the child;
• contribute to the maintenance of the child.

In certain circumstances, a parent, or a third party acting in the child’s best interest, can approach the court to have a parent or guardian’s parental rights and responsibilities suspended or terminated. In the aforementioned case, the applicant needs to prove that it would be in the minor child’s best interest. Grounds for an application like this will include physical abuse, verbal abuse, sexual abuse, drug abuse etc. The best interests of children are paramount in all child custody cases.

CHILD CUSTODY APPLICATIONS & SETTLEMENT AGREEMENTS

Any person with an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship. The court must take several factors into account, including the child’s best interests and the relationship between the applicant and the child.

In most cases, both parents remain holders of full parental rights and responsibilities upon divorce or separation. A detailed settlement agreement is drawn up, addressing all the necessary issues in respect of parental rights and responsibilities. This includes which party will have primary residence of the child, the contact the minor child will have with the other parent, major decisions regarding the child’s welfare, maintenance payable by each party and what to do in the event of the parties being unable to agree on a certain aspect.

Although the settlement agreement is made an order of court, both parties should always act in the best interest of the minor child. If circumstances change, a party has the right to deviate from the agreement and approach court again for an amendment of the terms and conditions thereof, alternatively the suspension or termination of the other party’s rights.

He will acquire full parental rights and responsibilities if he can prove that he was living in a life partnership with the mother at the time of the child’s birth, if he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he is registered as the biological father of the child in terms or if he contributes or has attempted to contribute in good faith to the upbringing of the child.

There are many more aspects of child custody than what has been discussed briefly above. Please do not hesitate to contact one of our very competent Child Custody Lawyers for more information.

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