When it comes to child support, we usually associate it with care and contact. Formerly defined as child “custody”, care and contact is one aspect of the broader array of parental rights and responsibilities afforded to a parent or guardian.
What are the parental rights and responsibilities
The responsibilities parents have toward their children are defined under Section 18 of the Children’s Act 38 of 2005, which essentially states that:
- A person may either have full or specific parental responsibilities and rights in respect of a child.
- The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right:
- 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.
The Children’s Act states that the care of a child includes, amongst others, the following elements:
- providing the child with a suitable place to live;
- providing living conditions that are conducive to the child’s health, well-being and development;
- providing the necessary financial support;
- safeguarding and promoting the child’s well-being;
- protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
Who gets to have contact with the child?
Firstly it is important to remember that the Children’s Act allows the courts to grant any person parental rights and responsibilities, even in the absence of a biological or legal relationship between the adult and child.
However, for the sake of simplicity, note that by default the biological mother and to a slightly lesser extent the biological father have parental rights and responsibilities toward their children. Although, it is often the case that when the parents separate there is dispute as to how exactly their rights should be exercised. In this event, the situation can be resolved either in or out of court.
Section 33 and 34 of the Children’s Act stipulates that the parents should attempt to enter into a parental rights and responsibilities agreement, which is known as a parenting plan.
Can a Parenting Plan be entered into without approaching a court?
To avoid having to facilitate the agreement of a Parenting Plan through the court process, the relevant parties may approach a Family Advocate. The Family Advocate will attempt to assist the parties in entering into a Parenting Plan which will be binding on the parties.
This plan may be registered with the Office of the Family Advocate or made an Order of Court.
If parties are unable to enter into a Parenting Plan through the assistance of the Family Advocate, what can they do?
In this instance the parties will need to approach either the High Court or the Children’s Court in their respective area of residence.
When deciding on the parent’s parental rights and responsibilities, the court will consider the following factors which will limit a parent’s parental rights of care or contact:
- Unfit parenting – if there is a history of irresponsible parenting, the relevant parent will be deemed unfit to be the primary care giver of the child;
- Child abuse – abuse may be physical, emotional, psychological and may even come in the form of neglect or abandonment;
- Psychiatric disorders – should a parent suffer from a psychiatric disorder, the court will decide on how care and contact should be exercised;
- Living conditions
Ultimately the Court will make the final decision. This decision will be based on what is in the child’s best interest.
Book a consultation with us if you need to discuss your specific case in more detail.