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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.Sharing is Caring
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Co-parenting-child custody[/caption]Child Custody, Maintenance, Divorce, Relocations, and other Questions and Answers
Our Lawyer (Pty) Ltd provides professional legal advice to their clients through the following options:
- Face to Face (At our location in Cape Town);
- Telephonic (We call you on the South African Landline / Mobile number provided);
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If however, you have a quick and simple family law advice question you wish to ask, feel free to post it below. There would, therefore, be no need to set-up a consultation and pay a fee. The question may relate to any of the following:
- Child Maintenance;
- Child Custody;
- Divorce;
- Relocation of minor children;
- Change of minor children’s surname;
- Guardianship rights;
- Passport consent issues;
- Domestic violence;
- Parenting Plans;
- and so on.
Useful family law Articles
Below are a few useful articles written by us.Child Relocation, Passports, Custody, Surname Change, and the High Courts – Simplified
What does Child Relocation, Passport disputes, Custody issues, and surname changes have in common? They are all matters which a court of law resolves if the parties cannot do so. Other than child custody issues that can be resolved by the Children’s Court, disputes in relation to Child Relocation, Passport Disputes and Surname changes for minor children are dealt with in the various Provincial High Courts in South Africa where the child ore parties reside. Click here to read more…Amendments to the Maintenance Act – Final Changes that took place in 2018 – Know your rights
Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even if a parent did not know of the law enforcing child support, he or she should have a natural inclination to do so. Unfortunately, the true reality is that it is not the case. Countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children. And to be fair, there are parents who abuse the maintenance process who takes the parent to court who is already adequately contributing. Now, for the maintenance enforcement process to function, working mechanisms need to be in place. This is where the Maintenance Act 99 of 1998, and the Maintenance Amendment Act, 9 of 2015 come into play. Read on to learn more. Click here to read more…Child Maintenance Saga: How a mother forced the father of her child to pay child maintenance after battling for 5 years
Maintenance Saga: When Jill was 17 years old, she met Jack. He was much older than her, working, and very charming. Jill was in her final year of high school and in love with Jack. One thing led to another, and Jill fell pregnant with his child. When she told Jack the good news, he asked her to have an abortion. She refused. Jack was then out of the picture and nowhere to be found. She did not know where he stayed, nor did she have his work details. All she had was his mobile number. This number was useless as he blocked her. The furthest thing from her mind at the time was the issue of child maintenance. Click here to read more…Paternity disputes and Scientific DNA Testing in Child Legal Matters
Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing. Click here to read more…Victory for Muslim Marriages in South Africa – Court gives the State 2 (two) years to enact legislation
On 31 August 2018, the Western Cape High Court handed down a ground-breaking judgment. In effect, it Orders the State to prepare, initiate, introduce, enact, and bring into operation, diligently, and without delay, legislation to recognise Muslim marriages. The High Court gave the State exactly two (2) years to attend to the latter process. This two (2) years would only be suspended if the matter is taken to the Constitutional Court. However, should the matter not be taken to the Constitutional Court for final determination, and the State does not enact the legislation, then by default, Muslim marriages may be dissolved in accordance with the Divorce Act 70 of 1979. Therefore, it is up to the State to action matters urgently. Click here to read more…Passport Applications for minor children: What you need to know – Department of Home Affairs – Questions and Answers
Should you require any advice on an application for a passport of a minor, where the co-parent refuses to consent or co-operate; feel free to set up a consultation with us. You may call 0211110090 or click here to do it online.Leaving South Africa, and visiting another country is something many people do on a daily basis. The reason, therefore, could either be for a holiday, business, a death in the family, and so on. Or it might be to relocate to another country to start a new life, either alone, or with your spouse or children. Whatever the reason is, you require a passport when leaving South Africa. For an adult, all you need to do is visit your nearest Department of Home Affairs Offices, with proof of identity, and the prescribed fees, and take your picture, fingerprints, etc. However, if you are a minor child, under the age of 18, it is not that simple. You would need to go with both your parents, and they need to provide their consent. Click here to read more…Father battles for 3 years to finally see his child. This he did with the help of a social worker, lawyer and the court. He now has regular contact with his child.
Custody, Contact, and Guardianship are parental responsibilities of all parents. Once the child is born, both parents not only have a right but a duty to form part of a child’s life. This is also the right of the child. Therefore, a parent cannot deny the other parent from exercising his or her parental responsibilities and rights. The Courts have a duty to ensure that a child’s best interests are met when approached. It is therefore of paramount importance that parents ensure that parental responsibilities and rights are exercise and enforced where necessary. This includes the responsibility of paying child maintenance. Click here to read more…
Leaving South Africa, and visiting another country is something many people do on a daily basis. The reason, therefore, could either be for a holiday, business, a death in the family, and so on. Or it might be to relocate to another country to start a new life, either alone, or with your spouse or children. Whatever the reason is, you require a passport when leaving South Africa. For an adult, all you need to do is visit your nearest Department of Home Affairs Offices, with proof of identity, and the prescribed fees, and take your picture, fingerprints, etc. However, if you are a minor child, under the age of 18, it is not that simple. You would need to go with both your parents, and they need to provide their consent. Click here to read more…Father battles for 3 years to finally see his child. This he did with the help of a social worker, lawyer and the court. He now has regular contact with his child.
Custody, Contact, and Guardianship are parental responsibilities of all parents. Once the child is born, both parents not only have a right but a duty to form part of a child’s life. This is also the right of the child. Therefore, a parent cannot deny the other parent from exercising his or her parental responsibilities and rights. The Courts have a duty to ensure that a child’s best interests are met when approached. It is therefore of paramount importance that parents ensure that parental responsibilities and rights are exercise and enforced where necessary. This includes the responsibility of paying child maintenance. Click here to read more…