What Are The Legal Implications Of Withholding A Child From Another Parent?

Written by Denisha Padachey
23 April 2022

WHAT ARE PARENTAL RESPONSIBILITIES AND RIGHTS?

The Children’s Act 35 of 2005, as amended (hereinafter “Children’s Act”), provides for parental responsibilities and rights under Section 18. According to this Section, “a person may have either full or specific parental responsibilities and rights in respect of a child”. Furthermore, section 18 (2) states that the following parental responsibilities and right are applicable in respect of the child, namely, “to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the maintenance of the child”.

CAN THE OTHER PARENT REFUSE OR FRUSTRATE THE EXERCISING OF MY PARENTAL RESPONSIBILITIES AND RIGHTS?

While certain parents are able to co-parent without issue, the unfortunate reality is that many parents struggle to co-parent following separation or divorce. As a result, instances may arise where one parent either refuses that the other parent exercise their contact rights or frustrates the exercising of the other parent’s parental responsibilities and rights. This is prohibited in terms of Section 35 of the Children’s Act.

CAN MY RIGHT OF CONTACT BE REFUSED IF I FAIL TO PAY MAINTENANCE?

Common misconceptions about when a parent’s contact rights may be denied have arisen. The most common misconception is that if a parent fails to pay maintenance, that parent may be denied access to their child. While an obligation does exist for a parent to care for their child financially in terms of Section 18 of the Children’s Act as well as Section 15 of the Maintenance Act 99 of 1998, and certain legal consequences may arise from non-payment, their contact rights are not interlinked with whether or not maintenance has been paid. As such, a parent’s contact rights cannot be refused as a result of them failing to pay maintenance, and more importantly, the child cannot be denied their right to see their parent in this instance.

In the event that one parent seeks to prevent the other parent from exercising their parental responsibilities and rights, that parent must follow the correct legal route. For example, if parent A seeks to prevent parent B from having contact with the minor child/ren, and parent B disputes this, parent A will have to adhere to the correct legal procedure and have parent B’s parental responsibilities and rights terminated, suspended, or restricted in terms of Section 28 of the Children’s Act. Parent A cannot simply make a unilateral decision to terminate these rights. For more information on terminating parental rights and responsibilities, consult our article “How do I terminate parental responsibilities and rights in South Africa”.

WHAT CAN BE DONE TO RECTIFY OR PREVENT A PARENT FROM WITHHOLDING THE OTHER PARENT’S RIGHT OF CONTACT?

According to Section 35 of the Children’s Act, where a person, who has care or custody of a child, refuses any other holder of parental responsibilities and rights from exercising their rights, contrary to a court order or a parental responsibilities and rights agreement, that person is guilty of an offence and liable to a fine or a period of imprisonment not exceeding one year. While this section provides that one parent may not refuse the other parent from exercising their parental responsibilities and rights, it also identifies the importance of having an enforceable parental responsibilities and rights agreement, namely a parenting plan, in place.

WHAT IS A PARENTING PLAN?

The parenting plan has been introduced as a potential co-parenting solution and is a useful legal instrument provided for in terms of Section 22 as well as Sections 33-35 of the Children’s Act. A parenting plan is essentially a written parental responsibilities and rights agreement signed by the parties to assist them in how to exercise their respective parental responsibilities and rights after separation or divorce. The document is usually drafted with the assistance of an impartial third party, which can include a family law attorney, a family advocate, a social worker, or a clinical psychologist. The parenting plan should include all the relevant content provided under section 33 of the Children’s Act and must comply with the child’s best interest as set out in Section 7 of the Children’s Act.

In the event where a parenting plan is either registered with a family advocate or made an order of court in terms of Section 34 of the Children’s Act, co-parents are provided with the peace of mind that they are able to acquire legal assistance and recourse should the agreement not be honoured. If these steps are adhered to, and your ex-spouse/ex-partner refuses your contact rights, they will be in breach, and you will be within your rights to approach a competent Court for assistance.

CAN A PERSON CHANGE A PARENTING PLAN ONCE IT HAS BEEN MADE AN ORDER OF COURT?

It is essential to understand that the child’s needs constantly evolve. Therefore, a parenting plan should be reviewed as and when these changes occur to protect not only the parents’ responsibilities and rights but, more importantly, the child’s best interest.

CONCLUSION

This article highlights the importance of having an enforceable parenting plan in place should you wish to prevent your ex-spouse/ex-partner from refusing your contact rights or hindering the exercise of your parental responsibilities and rights. In the event that your ex-spouse/ex-partner is frustrating, the exercise of your parental responsibilities and rights. Should you have any questions regarding parenting plans, do not hesitate to contact one of our branches to schedule an appointment with one of our family law attorneys.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE