Child Custody, Contact rights and more – Children’s Act 38 of 2005

This article gives a  short introduction to the Children’s Act.

The Children’s Act 38 of 2005 was a very welcomed piece of legislation. It assists us in answering many issues relating to Family Law. For example. What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights? Do I as a father of a child born in terms of a religious marriage have rights?

Parents who are involved in disputes regarding their children should educate themselves on the provisions of the Children’s Act.

Challenges for unmarried fathers

In our view, unmarried fathers almost always experienced difficulties regarding access to their children if they were separated from their mother. What is even worse, is if a couple was married in terms of religion or custom, and not civilly (e.g. in Court), and the parties separated, where the unmarried father’s position would be the same as that of an unmarried father who was never married to the mother religiously or customary.

Rights of Unmarried Fathers in South Africa

However, if a party was married civilly and divorced, the Divorce Court in the past would deal with the issue of care and contact in relation to the minor children. The usual phrase used was that the mother would have custody over the child, with the father having rights of reasonable access. The position has however improved with the inception of the Children’s Act 38 of 2005 for both divorced and unmarried fathers. As outlined below, an unmarried father would have rights over a child, akin to that of a married father, as long as certain conditions are met.

The persistent problem for unmarried parents

However, in our view, based on the custody and contact matters we dealt with since the inception of the Act, mothers are still seen as primary caregivers in practice, and if the mother does not want the father to have contact or care with the child or a say in his or her life, the father would still have to follow the procedures in the Act to give effect to his rights. Sometimes, approaching the Court is the only solution. However, on the whole, the Children’s Act 38 of 2005, is a step in the proper direction for unmarried fathers, and children born out of wedlock. We hope it would improve even more.

The coming into effect of the Children’s Act 38 (Act 38 of 2005)

All sections of the Children’s Act 38 (Act 38 of 2005) came into effect on 1 April 2010. The Children’s Act 38 of 2005 brought many changes regarding the responsibilities and rights of parents and children and also deals with other aspects regarding children, e.g. contraceptives and abortion, etc. Interesting to note are the following sections listed below, there are however others depending on your issues.

Parental responsibilities and rights

Section 18 of the children’s act 38 of 38 2005 states the following:

(1) A person may have either full or specific parental responsibilities or 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.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must

(a) Administer and safeguard the child’s property and property interests;

(b) Assist or represent the child in administrative, contractual and other legal Matters; or

(c) Give or refuse any consent required by law in respect of the child, including-

(I) consent to the child marriage

(ii) Consent to the child adoption;

(iii) Consent to the child departure or removal from the Republic;

(iv) Consent to the child application for a passport; and

(v) Consent to the alienation or encumbrance of any immovable property of the child.

(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

We shall now deal with what the Children’s Act of 2005 says the meaning of care and contact are, which are not the traditional words used in the past. In the past, the courts and the legal fraternity used the terms custody and access. This was reflected in divorce papers. Now legal documents use the terms care and contact although some might disagree, it is respectfully submitted that custody is an aspect of care and the Children’s act provides broader responsibilities and rights in this regard.

Meaning of Care in the Children’s Act

The Children’s Act 38 of 2005 defines care as follows:

Care in relation to a child, includes, where appropriate-

(a) Within available means, providing the child with-

(i) a suitable place to live;

(ii) Living conditions that are conducive to the child’s health well-being and development; and

(iii) The necessary financial support;

(b) Safeguarding and promoting the well-being of the child;

(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;

(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;

(e) guiding, directing and securing the child education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child age, maturity and stage of development;

(g) Guiding the behaviour of the child in a humane manner;

(h) Maintaining a sound relationship with the child;

(I) accommodating any special needs that the child may have; and

(j) Generally, ensuring that the best interests of the child is the paramount Concern in all matters affecting the child;

Meaning of Contact in the Children’s Act

According to the Children’s Act 38 of 2005, contact means the following:

Contact in relation to a child, means-

(a) Maintaining a personal relationship with the child; and

(b) If the child lives with someone else-

(I) communication on a regular basis with the child in person, including-

(AA) visiting the child; or

(Bb) being visited by the child; or

(ii) Communication on a regular basis with the child in any other manner,

Including-

(AA) through the post; or

(Bb) by telephone or any other form of electronic communication;

It is my view that the Children’s Act 38 of 2005 attempts to place greater value to contact between parent and child.

There are many sections in the Children’s Act 38 of 2005 that deals with parental responsibilities and rights of parents and children. Get hold of the Act and see how it applies to you.

If you are an unmarried father and your rights are being limited by the mother of the child, I advise you to contact a family legal practitioner and discuss your rights with him or her. And to all unmarried fathers out there, fight for your rights as a father, this would be in the child’s best interest.

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