Law & Society

It is important to remember that maintenance and contact are two separate issues which are decided by a court. Just because a parent is paying maintenance for a child, it does not automatically entitle that parent to see the child.

What is "care"?
Care (previously known as "custody") of a child entails more than a parent physically having the child with her/him and controlling the child’s everyday life. Care now places a duty on parents to maintain a good relationship with the child and promote the child’s well-being. This new concept is somewhat vague and the content of what exactly needs to be provided by parents will have to be decided by a court.
If we get divorced, what determines when my ex-spouse and I will see the child?
Since the Children’s Act 38 of 2005 came into force, both parents, upon divorce, will usually have parental responsibilities and rights in respect of a child born of the marriage. These rights and responsibilities include care, contact, guardianship and maintenance of the child.

When parents obtain a divorce, a court will make an order regarding the child. This order will include which parent the child will live with ("the resident parent") as well as the components of parental rights and responsibilities. This order will either be based on an agreement reached by the parents or, if no agreement can be reached, the court will determine what is in the best interests of the child and what is reasonable in the circumstances.

When can a child make his/her own decisions about the contact he/she has with the other parent?
A child can only make a decision in this regard when he/she reaches the "age of majority", i.e. 18 years old. However, a child that does not want to have contact with the non-resident parent cannot be forced to do so once he/she is of an age, development and maturity where his/her wishes can be taken into account.

The Children’s Act also states that before any person holding parental rights and responsibilities makes a major decision regarding the child, that person must consider the views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

“Major decisions” are any decisions affecting the contact of the child with his/her parents as well as any of the decisions which require the consent of both guardians, such as consent for a child to get married, be adopted, apply for a passport, be removed from the Republic, enter into a contract or for that child’s immovable property to be sold. Consideration must also be given to the views and wishes expressed by any person having parental rights and responsibilities, which is usually the other parent.

What if one parent wishes to take the child on an overseas holiday and the other parent refuses to let the child go?
A parent’s consent (if he/she is also a guardian of the child) is required to apply for a passport for a child and to remove the child from the Republic. If one parent unreasonably withholds his/her consent then the court can be approached. The court can be approached on an urgent basis and once the matter is heard, the court will make a ruling.

If the court rules in favor of the parent who wants to take the child on holiday, the requirement of consent from the other parent will be dispensed with and the court will consent for the child to travel.

If the refusing parent is found by the court to be unreasonable in withholding his/her consent then that party may be forced to pay the legal costs incurred by the other parent.

What if it is the non-resident parent's contact weekend and the child is invited to a party/play date but that parent will not allow the child to go?
There are various solutions in situations like these. The most obvious option being that the parents can swap their weekends so that the non-resident parent may have a contact weekend where there is no play date and can then spend the entire weekend with the child. This, however, only works if the divorced parents have a good relationship where it is possible to rearrange contact periods at short notice.

Alternatively the non-resident parent can refuse to let the child go to the party and there is not much that the resident parent can do about it. Although the best interests of the child are the most important consideration, a court will not entertain disputes regarding minor issues such as play dates. In this type of situation, if the child is old enough, he/she may make his/her own decisions about whether he/she wants to go to the non-resident parent for the weekend and miss out on the play date or if he/she wishes to remain with the resident parent and attend the play date.

The High Court of South Africa is the upper guardian of all minor children in our country. The best interests of the child are paramount and will always be considered above everything else.