Legal Articles

As a parent you and your partner both have rights and responsibilities regarding the parenting and raising of your children. 

When parents are no longer living together, are divorced or separated, issues can arise due them not being able to agree on what is best for their children. 

Parent Custodial Rights

Another problem relates to custodial rights where either parent could desire to have full custody of their children. 

Parents in such situations may require professional legal help in order to reach agreements regarding the child. It may be of worth to first consider your rights as a parent.

Section 18 of the Children’s Act of 38 2005

Section 18 of the Children’s Act of 38 2005 lays out the rights and responsibilities a parent has regarding their child. 

(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.

Parenting Plans

Section 33 and 34 encourages parents to agree on a parenting plan when they are unable to agree on how to exercise their parental rights and responsibilities. Although, this should be something they have by default. 

In order to reach an agreement on a parenting plan, they should either visit a social worker, a psychologist or any other expert suitably qualified to help them resolve these issues. 

If this is successful, then a parenting plan would be drafted and entered into. It will then either be registered with the Office of the Family Advocate, or else made an Order of Court. 

The Children's Court

In situations where a parenting plan cannot be agreed on, the parents would take the matter to the High Court or the Children’s Court. 

However, the Children's Court is best suited for parents wanting to conduct their own case. 

As it is not a requirement in South Africa for individuals to have a legal representative, both parties are able to save on costs by representing themselves in court. 

Parents should take note that the Court procedure in the High Court is not straightforward. It is only recommended to approach the High Court if you can afford an attorney and an advocate to see to your case. 

The factors that are taken into consideration when the Court are deciding on how contact and visitation rights should be exercised include child abuse, unfit parenting, living conditions and psychiatric disorders.

Taking the above into consideration, the court also listens to both parents cases, and  the expert appointment who will provide a report. Eventually, after hearing all there is to say a decision is then made which takes into account the best interests of the child. 

While it is not a pleasant subject to talk about, it is something that you need to be prepared for. 

Van Deventer & Van Deventer Incorporated - Divorce Attorneys Johannesburg

We are able to assist you obtain contact, visitation and custody rights to your child. Contact us for expert legal advice.