Advocate Veerash Srikison stresses the importance for parents to understand the meaning behind the legal terminology they use or requests made to their lawyers, so that they are able to make informed decisions and save themselves time and costs in legal fees.
In daily practice, a family lawyer often meets clients either in the midst of a separation or those beginning divorce proceedings, who ask for ‘sole custody’ or that limited access be granted to the other parent. When you ask your lawyer for ‘sole custody’ of your child, it must be noted that a court does not automatically give a person sole responsibility for a child without sufficient reasons shown. In determining what care, contact and guardianship arrangement would best serve a child’s interests, the court does not look for the ‘perfect parent’, but rather focuses on finding the least detrimental option available for safeguarding a child’s growth and development.
When discussing custody, also known as care, your lawyer or mediator must go into detail about the type of care your child will need from both parents. As parents you must both look at your particular family structure to know the quality of care needed by your child. Do not be afraid to ask your mediator or legal practitioner to provide you with as much legal information on care as contained within the Children’s Act 28 of 2005.
YOU WILL NEED TO DISCUSS:
- Providing the child with a suitable place to live.
- Safeguarding his or her well-being.
- Protecting your child from abuse and neglect.
- How the daily and educational needs of your child will be fulfilled.
- How medical decisions will be made.
- The associations your child may have and maintain.
LEVERAGING CONTACT RIGHTS
Another request made to lawyers, is to draft a document stating that contact (access) will be denied if the maintenance payments are not made or done so in time. Contact rights to a child born out of wedlock or after divorce may only be removed if it can be proved that this contact is not in the best interests of that child. In South African law, the aim of contact with each of their parents is for a child born out of wedlock or a child after a divorce, to build and maintain a relationship with the non-primary resident parent.
The courts will therefore be reluctant to enforce terms leveraging contact rights with the payment of maintenance. It is your responsibility to ensure that your document contains terms that deal with the nonpayment of maintenance monies and how you can recover these monies without disrupting your child’s contact with the defaulting parent. By disallowing contact you are inadvertently punishing your child by loss of affection and attention for a consequence that is beyond their control.
GUARDIANSHIP
Where parents are married to each other and have a child they become joint natural and legal guardians to their child. This means that they have the right to administer their child’s property, to assist their child in administration, contractual or other legal matters, and to consent to their child’s marriage, adoption and departure from South Africa, application for a passport, or alienation or claim of any immovable property. In the event of a divorce or separation the courts are again reluctant to interfere with these rights and will appoint sole or single guardianship to a parent only if it is in the best interests of the child to do so.
Unmarried parents though have a different guardianship structure. Full parental rights and responsibilities automatically vests in the mother, including guardianship. The father of a child, who is not legally married to their mother, must apply to the court for guardianship rights, while still providing for the upkeep and care of their biological child. By having this basic understanding of care, contact and guardianship you may feel slightly at ease to approach your lawyer or mediator when discussing your rights and responsibilities as a parent.
