Guardianship, Access and Custody to Children

Legal Matters

When parents divorce, and there are minor children involved, it is very important to make arrangements that would be in the best interest of the children. When any court decides a matter that involves a child, the best interest of the child would always be paramount.

When parents divorce, and there are minor children involved, it is very important to make arrangements that would be in the best interest of the children.  When any court decides a matter that involves a child, the best interest of the child would always be paramount. 

As the High Court is the upper guardian of all minor children, it would never give an order contrary to the best interest of the children.  It is important to keep this fact in mind when making arrangements as to who gets the kids, because a court can contravene your decision if it is of the opinion that current arrangements is not in the best interest of the children involved.  Furthermore, in terms of the Divorce Act, 1979 a court is not allowed to grant a decree of divorce until it is satisfied that the arrangements that have been made for the welfare of the divorcing parents’ children are satisfactory or the best that can be achieved in the circumstances.

Guardianship

In terms of the Guardianship Act, 1993 both parents of a legitimate child have guardianship of that child during the subsistence of the marriage.  Either parent may exercise any aspect of guardianship independently, except for certain matters that require both parents consent, for example consent to a minor child’s marriage, adoption, the removal of the child from South Africa, application to get a passport for a child under 18 and the selling or encumbrance of the minor’s immovable property. 

The mother of a child born out of wedlock is the sole guardian of that child and may make all decision regarding the child without the father’s consent. 

Normally both parents continue to exercise equal guardianship after divorce.  Courts do however have the power to alter this.  A Court may make any order it deems fit regarding guardianship.  It may for instance award guardianship or sole guardianship to either parent.

Sole guardianship

If a court grants sole guardianship to one parent, that parent becomes the child’s only guardian to the exclusion of the other one.  This will have the effect that only this parent’s consent is necessary to make decisions that would normally require both parents consent.

Sole guardianship is not readily awarded.  A court will for example, award sole guardianship in the case where one parent shows absolutely no interest in the child or in performing his or her duties as a guardian.  If sole guardianship is awarded to one parent he or she may make all decision regarding the child.  Apart from consent to adoption of the child, the sole guardian is the only one whose consent is necessary.  That parent may also appoint a successor as sole guardian in his or her will.

Guardianship to one of the parents

When one parent gets guardianship, that parent does not have sole guardianship in the sense that he or she may exercise guardianship to the exclusion of the other parent.  The one, who gets guardianship, may decide on all day-to-day matters concerning the child.  It does not however empower the guardian to appoint a successor to the exclusion of the other parent.  Both parents must also give their consent to the child’s marriage if the child is still a minor.

Custody of a child

Custody refers to the physical control over a child and the ability to supervise the child’s daily life.  During the subsistence of a marriage, both parents have custody of a child.  When the parents divorce, the court may make any order regarding custody that it deems in the best interest of the child.  Custody is normally awarded to one parent only, but an award for joint custody is also possible.  The court will also take the child’s wishes into account, if of the opinion that this child has the necessary intellectual and emotional maturity to have a well-informed view as to which parent should have custody over him or her.

Preference to mothers 

In the past, courts gave preference to mothers as custodians, as it was assumed that they make better caretakers.  This was called the “maternal preference rule.”  It has however been declared discriminatory by courts.  Courts emphasise that the quality of a parent’s role is not simply determined by gender.  “Mothering,” in the courts’ opinion refers to caring for a child’s physical and emotional well-being.  This is not only a component of a mother, but also form part of a father’s being.  Courts thus consider fathers as just as good a “mother” as the child’s biological mother, and conversely, a mother can be just as good a “father” as the biological father. 

The courts view is that custody is not a gender privilege or a right.  It is a responsibility and a privilege that has to be earned.  While maternity may be considered when making a custody award, it would amount to unfair discrimination if a court places undue and unfair weight upon the factor of maternity when balancing that with other relevant factors.  It is thus not allowed to make the assumption that mothers make better caretakers, as this will be contrary to the father’s Constitutional right to equality.

Different types of custody that a court may grant:

1. Sole custody 

Courts may grant sole custody to one parent in a case where one of the parents has, for example, abused the child.  It goes without saying that it would then be contrary to the child’s best interest if that parent has any custodial rights.

2. Deferred of postponed custody

A Court may also grant deferred or postponed custody in certain instances.  This will typically be the case where you want custody of your child, but must first satisfy the court that adequate arrangements have been made to receive the child into your care.

3. Split or divided custody

Split or divided custody may also be awarded.  It refers to a situation where you would have custody of some children and you ex husband custody of other children.  This is however not granted easily, because courts are not in favour of separating siblings.  It is usually only awarded when a parent who has custody, neglects some of the children or if it would substantially improve a specific child’s position.  Here you would think of the situation where all children stay with mom, but having one child who desperately wants to stay with dad.  Giving the dad custody in such a case would be in the best interest of that child, even if you have to separate him or her from other siblings.

Split or divided custody may also be granted when it would be in the best interest of the child to stay with mom while still very young, but with the father gaining custody of the child when he or she reaches a specific age.  The court would then give custody to the mother for the first period, until the child reaches a specific age, in which case the dad will gain custody.

4. Joint custody 

In appropriate circumstances, a court may also award joint custody to parents.  There are two types of joint custody, namely joint legal custody and joint physical custody.  Whether joint custody will be awarded, and what form it will take will depend on the circumstances of each case.  The deciding factor will always be the child’s best interest.  The relationship between the parents are also very important in cases where a court must decide whether joint custody will be favourable.  A court must be certain that the parents have a good relationship otherwise it would not be in the best interest of the children because of the risk that they will constantly fight over issues regarding the children.  Court more readily award joint custody when the parents have already been exercising joint custody at the time of the divorce, of did so successfully in the past.

5. Joint legal custody

In this case, joint custody only relate to joint decision-making about important issues, such as what language the child should be brought up in, where the child should be educated and what religion the child should be taught.  The child then resides with only one parent and that parent also make the day-to-day decisions, such as when bed time is, how may television the child is allowed to watch and whether the child may stay over at a friend’s house.

6. Joint physical custody

When joint physical custody is granted, a child will spend substantial amounts of time with each parent, for example parts of each week or alternate weeks with each.  This will only be possible if the parents live reasonably near one another.  There are obviously huge benefits to joint custody, in that the children continue to have a personal relationship with both parents.  Neither parent assumes the dominant role in the child’s life with the other parent becoming an “absent” parent.  Because of the changing roles and responsibilities of parents, courts grand joint custody more readily these days.  
   

Limitation on your custodial rights 

A court may impose limitation on your custodial rights when giving you custody of a child.  The court may for instance prohibit you from relocating the child or taking the child on holiday without the consent of the father.

Access

Access to a child, refers to the non-custodial parent’s right and privilege to see the child regularly, to visit the child, to have contact with the child, to regularly spend time with the child and to enjoy his or her company.

The non-custodian parent normally has reasonable access to a child, which means that he or she may have access to the child at reasonable times, places and intervals.  It is better to reach agreement on what is reasonable in the particular circumstances.  If however unable to reach agreement, parents may approach court for an order structuring access as it sees fit.

The parent who is the custodian are not allowed to impose unreasonable restrictions or conditions regarding access, but has the final say when the two parents are not able to agree on something.  Unless contrary to the child’s best interest, the custodian are for example not allowed to refuse that access takes place in the non-custodian parent’s house or to insist on being present.  It is also not allowed to refuse contact with a new spouse or companion, unless it will be against the child’s best interest. 

Court’s involvement

A court may make any order it deems fit regarding access.  It may for instance award reasonable access to a child or the court may order structured and controlled access.  If for example, the relationship between the non-custodian parent and the child is very poor, the court may order that initially access it to occur only occasionally, but should become more regular as the relationship improves.  Access may also be postponed until the non-custodian has undergone treatment of some sort.  Supervised access is also sometimes necessary.  This is normally only ordered when contact with the non-custodian entails a clear risk of abuse or abduction.  Sometimes a non-custodian may also be prohibited from seeing or visiting the child, but may be allowed to communicate with the child through letters, calls or other means.  A court may also deny access altogether if this would be in the best interest of the child.

Enforcing guardianship, custody and access

If you want to enforce guardianship, custody or access, you have four remedies at your disposal.  These are an interdict, an order directing compliance, reasonable force and criminal sanction.

Interdict

If someone interferes with the legitimate and proper exercise of your guardianship, custody or access to your child, that person can be interdicted by a court from doing so.

If your ex for example threatens to remove your child from school, an interdict can be obtained to prohibit him from doing so.  If interference has already occurred, he can be ordered to restore the position as it was or be interdicted from further interference.

An order directing compliance

If your ex or anyone else fails to comply with the terms of an existing court order regarding guardianship, custody or access, the court may issue an order directing compliance.

Reasonable force

If it is the child that is unwilling to submit to access, reasonable force may be used to enforce your right to access.  You are also allowed to expect your ex to give his cooperation.  He must take steps to help persuade the unwilling child to submit to access.

Criminal sanction

It is a crime to refuse a non-custodial parent access to a child without reasonable cause to do so or to prevent that parent from exercising his or her right of access.  This crime is punishable with a fine or imprisonment for up to one year.  Sometimes it can amount to imprisonment without the option of a fine. 

It is furthermore also a crime to change the residential address without notifying the other parent in writing.  This will be punishable with a fine or imprisonment of up to three months.

Someone can also be charged with contempt of court if he or she wilfully and in a wrongful manner exercises any aspect of guardianship, custody or access in conflict with an existing court order.

Also, if someone frustrates an order regarding guardianship, custody of access that person may be charged with contempt of court.

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