Child Custody Law in South Africa

What exactly is child custody? Child custody refers to the legal order or instruction by the court to the parents of their child/children. The term Custody on its own, simply means to care or protect for. Hence child custody is concerned with the protection and care of a child by the parents. [caption id="attachment_4504" align="alignleft" width="300"] Call law offices: 0211110090
Email us at: [email protected][/caption] When it comes to the Children’s Act in South Africa, your legal expert/professional will tell you that the Act aims to have the child’s best interest in place. With that being said, the Act covers a number of legal aspects and rights regarding the child. Attorneys (Lawyers), Advocates and other legal professionals, will make use of the Act to ensure that they are doing things legally correct. The Children’s Act can be applied to parents, grandparents, aunties, uncles, teachers and so forth.

Sole Guardianship

Sole guardianship refers to one parent having full custody of the child. Some may interpret this wrongly and think that the other parent will no longer be able to see the child. This is not the case. It is however, commonly understood that the mother is usually awarded sole custody. This too, is no longer the case. Should the mother be the less responsible parent, sole custody may be awarded to the father by the court. Depending upon the nature and circumstance of the legal matter, the court may find joint custody in the child’s best interest. [caption id="attachment_4506" align="alignleft" width="300"] Call law offices: 0211110090
Email: [email protected][/caption]

Custody of divorced parents

There is so much at play when it comes to deciding to the custodian parent of the child with divorced parents. It is best advised that a parenting plan is professionally drafted and legally executed. A parenting plan outlines the rights of both parents with regards to the child; covers visitation rights and helps both parents reach a mutual ground. [caption id="attachment_4507" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption]

Divorced father’s rights

Fathers do have rights to their child after divorce. Depending on the relationship between the two parents, they may reach a mutual agreement. If you’re a father who regular pays child maintenance but is still denied access to your child, you may want to take this up with a family law legal expert. [caption id="attachment_4494" align="alignleft" width="300"] Call our law offices on: 0211110090
Email: [email protected][/caption]

Child custody cases

Our Lawyer Pty Ltd have dealt with a number of child custody, divorce and child maintenance legal matters. Below are a few of our child custody articles you may find helpful: [caption id="attachment_4508" align="alignleft" width="300"] Call our law offices on: 0211110090
Email us at: [email protected][/caption] Call our offices today and have your legal appointment booked online immediately. Our Lawyer Pty Ltd is highly accommodating towards its clients and believe in making life easier for its clients. This is why we have decided to initiate an online appointment system as well as an online platform in which you can share your thoughts and post your legal questions. Connect with us today!  
Posted on by Telelaw

Child Custody Law in South Africa

What exactly is child custody?

Child custody refers to the legal order or instruction by the court to the parents of their child/children. The term Custody on its own, simply means to care or protect for. Hence child custody is concerned with the protection and care of a child by the parents.

Call law offices: 0211110090
Email us at: [email protected]

When it comes to the Children’s Act in South Africa, your legal expert/professional will tell you that the Act aims to have the child’s best interest in place. With that being said, the Act covers a number of legal aspects and rights regarding the child. Attorneys (Lawyers), Advocates and other legal professionals, will make use of the Act to ensure that they are doing things legally correct. The Children’s Act can be applied to parents, grandparents, aunties, uncles, teachers and so forth.

Sole Guardianship

Sole guardianship refers to one parent having full custody of the child. Some may interpret this wrongly and think that the other parent will no longer be able to see the child. This is not the case. It is however, commonly understood that the mother is usually awarded sole custody. This too, is no longer the case. Should the mother be the less responsible parent, sole custody may be awarded to the father by the court. Depending upon the nature and circumstance of the legal matter, the court may find joint custody in the child’s best interest.

Call law offices: 0211110090
Email: [email protected]

Custody of divorced parents

There is so much at play when it comes to deciding to the custodian parent of the child with divorced parents. It is best advised that a parenting plan is professionally drafted and legally executed. A parenting plan outlines the rights of both parents with regards to the child; covers visitation rights and helps both parents reach a mutual ground.

Call our law offices on: 0211110090
Email us at: [email protected]

Divorced father’s rights

Fathers do have rights to their child after divorce. Depending on the relationship between the two parents, they may reach a mutual agreement. If you’re a father who regular pays child maintenance but is still denied access to your child, you may want to take this up with a family law legal expert.

Call our law offices on: 0211110090
Email: [email protected]

Child custody cases

Our Lawyer Pty Ltd have dealt with a number of child custody, divorce and child maintenance legal matters. Below are a few of our child custody articles you may find helpful:

Call our law offices on: 0211110090
Email us at: [email protected]

Call our offices today and have your legal appointment booked online immediately. Our Lawyer Pty Ltd is highly accommodating towards its clients and believe in making life easier for its clients. This is why we have decided to initiate an online appointment system as well as an online platform in which you can share your thoughts and post your legal questions. Connect with us today!

 

Related Post

[caption id="attachment_10833" align="alignnone" width="674"]Relocation consent Court Order for minor child to Norway - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Norway – Advocate Muhammad Abduroaf[/caption]  

I want to relocate from South Africa to Norway with my minor child. The other parent does not want my child to relocate to Norway. What can I do?

Norway is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Norway, if a minor child will be joining that parent and also relocating to Norway, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Norway. Before we do so, let us list the various cities and towns in Norway to which you may want to relocate: Ålesund, Arendal, Bærum, Bergen, Fana, Bodø, Drammen, Fredrikstad, Halden, Hamar, Hammerfest, Haugesund, Kabelvåg, Kristiansand, Kristiansund, Lillehammer, Molde, Moss, Narvik, Oslo, Porsgrunn, Ringsaker, Sandefjord, Sandnes, Skien, Stavanger, Steinkjer, Svolvær, Tønsberg, Tromsø, Trondheim, Vadsø. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Norway-2050561)  

Why do I require the other parent’s Consent to relocate to Norway?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Norway. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (1) A person may have either full or specific parental responsibilities and 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’s marriage;  (ii) consent to the child’s adoption;  (iii) consent to the child’s departure or removal from the Republic;  (iv) consent to the child’s 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). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (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. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Norway. Even if the minor child only wants to go for a short holiday to Norway, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Norway?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Norway. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Norway.

Mother’s Consent for relocation of the minor child to Norway

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Norway, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Norway

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Norway. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Norway.

Consent of unmarried fathers for the relocation of their minor children to Norway.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-  (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or  (b) if he, regardless of whether he has lived or is living with the mother-  (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;  (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and  (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.  (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.  (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.  (b) Any party to the mediation may have the outcome  of the mediation reviewed by a court.  (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Norway?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Norway, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (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). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Norway, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10832" align="alignnone" width="638"]Relocation consent Court Order for minor child to Norway - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Norway – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10833" align="alignnone" width="643"]Relocation consent Court Order for minor child to Norway - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Norway – Advocate Muhammad Abduroaf[/caption]

Posted on by Telelaw