It’s not an exaggeration to say that raising children is one of the most challenging (yet rewarding) tasks in life; any parent will admit that it takes a lot of time, commitment and love to nurture and shape a human being. The goal, of course, is to meet children’s essential needs, helping them grow, develop and achieve their capabilities as much as possible. Parents are raising the next generation, after all! A child-focused approach that prioritises their best interest and needs isn’t just good parenting; it’s an obligation set out in our country’s laws. Knowing and understanding these legal rights and duties of parents in South Africa empowers moms and dads to step up and do their best!
The rights and responsibilities of married vs unmarried parents.
There are many different families, many of which don’t fit a traditional mould. We live in times where more and more people stay single and choose not to get married, opting instead to cohabitate with their partner. Marriage is still a legal and traditional institution that many South Africans hold dear. Yet, each year more than 25 000 couples go their separate ways and get divorced. But depending on the relationship status and whether kids were born in or out of wedlock, parental rights and responsibilities can look different as well.
It’s important to understand that both biological parents equally share the same rights and responsibilities if they are married and even if they decide to get divorced. While unmarried mothers automatically have full parental rights and responsibilities, unmarried fathers only have specific rights and responsibilities, such as contact and child maintenance. An unwed dad can obtain parental rights if he was living with his child’s mother in a serious, long-term relationship when his child was born, claims paternity, contributes to his child’s upbringing, pays (or attempts to pay) child maintenance or damages in terms of customary laws. Other rights and responsibilities, such as care and guardianship, can only be obtained by applying to the Children’s Court or High Court, respectively.
A closer look at the legal rights and duties of parents in South Africa.
Kids don’t come with an instruction manual on how to raise them, but the most critical parental rights and duties are laid out in the Children’s Act 38 of 2005. The law which aims to protect children, while respecting parent’s rights, acknowledges that there is no such thing as the “perfect parent”, but emphasises that parents have to do what’s in their child’s best interest. Parental rights and responsibilities include:
- caring for and protecting children;
- keeping contact;
- acting as a guardian; and
- making financial contributions to child maintenance.
Let’s take a closer look at these obligations:
- Taking care of and protecting children.
The law used to refer to “custody”, but this term is outdated, and we now talk about “care” instead. In a nutshell, the concept of care means putting the daily needs of a child first. This duty includes providing a suitable and safe home that safeguards and promotes their health, development and well-being. Essentially, a child must live in a home that is free of abuse and neglect.
- Keeping contact and maintaining relationships.
Contact is also an updated term used, instead of “access”. Even if parents weren’t in a relationship, to begin with, or are no longer in one, and don’t live in the same home, they have a responsibility to maintain contact with the kids. Basically, it means that a parent who doesn’t live with their child must make an effort to talk and see them often enough to develop or maintain a personal and caring relationship. Whether through regular visits or consistent communication (telephone calls, letters, Zoom catch-ups, etc.), the child must feel as though both parents are present in their life.
- Acting as a guardian to minors.Part of being a parent also means taking on the administrative responsibility of raising a child and making critical legal decisions on their behalf. Parents must look after and make important decisions about their minor child’s property, sign contracts or act on their child behalf in a court of law. This duty also includes giving permission for adoption, relocation to another country, and even to get married before the age of 18. Parents are also responsible for helping their child get a passport, ID and any other legal identification.
- Paying child maintenance.
Of course, minor children cannot financially fend for themselves until they become self-sufficient adults. So until that time, both parents must support the child financially, and make contributions towards their care and support, including education, housing, food, clothing and anything else related to their lives and schooling.
For a full breakdown of how the maintenance amount is determined, how maintenance claims can be increased or decreased and what the legal consequences are for maintenance payment defaulters, be sure to read our comprehensive Paying Child Maintenance in South Africa feature.
Applying for care, contact and guardianship rights.
Any person who has an interest in the well-being, care and development of a child can go to the Children’s Court or High Court, to get consent to be a part of the child’s life and take on specific responsibilities. As the supreme guardian of all children in our country, the High Court is the only authority that can give a person permission to be a child’s legal guardian. Before making any decisions about care, contact or guardianship, the court will look at what’s in the child’s best interest and consider the relationship between that person and the child, amongst other things.
Restricting, suspending or terminating parental rights.
A child’s interests, safety and well-being must always come first. When a child’s interests are neglected, or the situation has changed so that a parent can no longer cater to their child’s needs in fulfilment of their parental duties in the best interest of their child, the court could limit, suspend or terminate a parent’s rights and responsibilities for some time or permanently. A parents rights and responsibilities can be challenged, in an application to the court, by the other parent, a family representative, a lawyer or anyone acting in the child’s best interest.
When deciding on which course of action to take, the court will consider one or more of the following:
- what would be in the child’s best interest;
- the relationship between the child and parent whose rights and duties could be affected;
- the commitment the parent has shown towards their child;
- any other factor the court needs to take into account
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