Frequently asked questions when it comes to parental responsibilities and rights of parents having issues or difficulties in co-caring for their children.
As things evolve, so does the legal question surrounding child custody, contact and care. For example, not too long ago, children were generally seen as best being cared for by mothers as opposed to fathers. Fathers would usually get custody if the mother was incapable of caring for a child. Now the law focuses solely on what is best for the child under specific circumstances. Therefore, it often happens that primary care is awarded to fathers where there are no social welfare issues involved.
Moreover, a lot of attention is given to the voice of the child. This depends on the child’s age and level of maturity. We decided to answer various popular questions on parental rights and responsibilities when it comes to children. Below are 11 popular legal questions and answers Our Lawyer comes across. Further below are some frequently asked questions that you can apply your mind to.
- Does a mother have more rights over a child than a father?
- The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
- Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months.
- I am not a working mother. Does that mean that I cannot have primary care (custody) over my child
- The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.
- Can I refuse the father to have contact with my child if he does not pay child support?
- What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?
- Can a parent refuse the other parent’s contact with the minor child if there is no court order?
- Can the minor child decide where he or she wants to live if the parents are separated?
- How can I get full custody of my child without going to court?
Read on to find the answers to the above questions.
Does a mother have more rights over a child than a father?
If the parents are married, then they have equal parental rights and responsibilities over their child. They, therefore, both have to agree on important aspects of the child’s life.
If the parents were not married, then the issue is that of whether or not the father acquired full parental rights and responsibilities over the child. In short, this he would acquire, if he was actively involved in the child’s life since birth, and paid child support. As the child would generally live with the mother, she would decide what is best for the child during the time he spends with her, and the father the same when the child is with him. As he would have acquired parental rights and responsibilities, he would have to consent for guardianship issues. For example, an application for a passport or leaving South Africa with the mother. If the parents cannot agree on these issues, they would have to try to agree on a parenting plan. If that turns out futile, the court may be approached.
The father of my child never had contact with the child since before my child’s birth. Does he have any parental rights? We were never married.
If a father was not married to the child’s mother, he would only obtain parental rights if he was involved in the child’s life since birth and contributed to the child’s maintenance adequately. This is the long and short of it. Concerning the question above, the father does not have any parental responsibilities and rights. Therefore, he cannot come into the child’s life after 10 years and demand to have contact. This may not be in the child’s best interest. Each case is however decided on its own merits.
Do I need a lawyer to obtain contact and care rights for my minor children? I never saw my children for the past 6 (six) months
It is very sad if a parent refuses the other parent’s contact with their minor children. It is not only the parent who loses out but the children as well. The bond the children have been developing with the other parent would be severed and needs to be rebuilt again. Although children may not express it, they do know that things are wrong. A child would know that a parent is no longer visiting.
One does not have to have a lawyer to assist you in obtaining a court order to see your children. However, it is advisable. If you cannot afford one, you can approach the Children’s Court to assist you. It is not necessary to have an attorney or advocate in the latter court.
I am not a working mother. Does that mean that I cannot have primary care (custody) over my child?
There are many parents out there who are not working and caring for their children. The law does not state that a child should reside with a parent who can afford to maintain him or her. If the primary caregiver of the child is unemployed, the maintenance court can order that the other parent pay adequate child support to the other parent. This would be in the child’s best interest.
Therefore, primary caregivers of children should not be afraid to fight to keep their children with them despite them being unemployed. They should approach the maintenance court if the other parent is not paying adequate child support for the minor child. The amount they claim can be all the child’s monthly expenses. In other words, the parent caring for the child would not spend any money on the child as she does not have the means. However, caring for the child has great value in it.
The father of my child is threatening to take our child away from me. Can he do that? He can afford lawyers.
This question we often receive from mothers who are separated from the child’s father. They feel vulnerable because the father is bullying them into believing that they will get what they want if the mother does not listen to them. This is a sad reality. However, one that nonetheless needs to be addressed.
The law looks at what is best for the child. And does not listen to the parent who has more money or more status in society. If it would indeed be best for the child to live primarily with, the father, then the Court would make such a ruling. However, depending on the age of the child, and how he or she is being cared for, if parents separate, the child would usually remain with the parent who primarily cared for the child. As stated, what is best for the child is the deciding factor. Nothing else.
Can I refuse the father to have contact with my child if he does not pay child support?
Child maintenance obligations and the right to have contact with your child are two separate issues. That is why we have the Maintenance Court and the Children’s court. If a parent is not paying child support or adequate child support for that matter, the primary caregiving parent must approach the maintenance court to decide on the matter. The Maintenance Court would then make a ruling as to what is fair under the circumstances.
On the other hand, if a parent is paying more than reasonable child maintenance, it does not mean he or she can have more contact with the minor child. In other words, the more he or she pays, the more contact he or she would have. The law does not work that way. If a parent feels that the other parent is unreasonably withholding contact, then he or she must approach the competent court for relief. But at the same time, continue paying child maintenance.
What happens if parents cannot agree on how to exercise their parental rights and responsibilities of care and contact?
Parental responsibilities and rights refer to aspects of where the child would live, how contact is to be exercised, maintenance and guardianship issues. Parents should first try to agree on a parenting plan should they experience difficulties in exercising their rights. Difficulties in the sense that they cannot agree to the above-mentioned aspects of parenting. The plan would be drafted with the assistance of a social worker, mediator, lawyer, or another suitably qualified person.
If the parents cannot agree on the parenting plan, then they may approach the court to deal with their issues. They may approach the Children’s Court or the High Court. The challenge here is that it can take very long, expensive if you make use of lawyers, and further, you are leaving the decision to the court to decide. If you try to mediate a parenting plan beforehand, you and the other parent are in control of the situation.
Can a parent refuse the other parent’s contact with the minor child if there is no court order?
If a parent has parental responsibilities and rights over a minor child, he or she has the right to form part of the child’s life. A parent, therefore, cannot refuse the other parent reasonable contact with the minor child. This would not be in the minor child’s best interest. However, it often happens that a parent believes that under certain circumstances, the other parent should not have contact with the minor child. This is so, despite both parents having full parental responsibilities and rights over a minor child. This attitude can be dangerous, as we have a situation where one parent believes he or she is the sole decider as to what is best for the child. A child has two parents, and both parents should decide.
Therefore, if there is no court order, and one parent primarily cares for the minor child, we would expect that parent to act reasonably and, in the child’s, best interest and not in a bossy and controlling manner. If the other parent feels that the primary caregiver is being unreasonable, he or she should attempt to mediate the matter and for a parenting plan to be entered into. If that does not work, the court should be approached to grant a final parenting order.
Can the minor child decide where he or she wants to live if the parents are separated?
Children are to be cared for and therefore, need their parents to decide what is best for them. Therefore, the answer to the question above is, no. It is not up to the child to decide where he or she wants to reside if his or her parents are separated. The parents must resolve this issue between themselves. The child’s views must be considered, based on his or her age and level of maturity.
It sometimes happens where a child resides with one parent, and the other parent wants to manipulate the situation. He or she would try to get the child to get the primary caregiver to agree that primary care is reversed. For example, by promising the child something so that the child would act in a certain way which would change the living arrangements. This is not in the child’s best interests.
How can I get full custody of my child without going to court?
Custody is a factual issue. In other words, a parent can be caring for a child on his or her own for years. In such a case, he or she is exercising sole custody over the child. The parents may even agree that the child remains with one parent. Therefore, in such a case, that parent would have full custody.
Therefore, it is not necessary to go to court if you are already exercising sole custody over your child. However, it often happens that parents want to formalise this situation with a Court Order. In such a case, approaching the court is necessary.
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Child Custody Notice of Motion and Founding Affidavit – Advocate Abduroaf – High Court[/caption] 
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Adv. Muhammad Abduroaf[/caption]