RIGHTS AND RESPONSIBILITIES IN RESPECT OF MINOR CHILDREN

Having a child is most certainly one of the most humbling experiences anyone can experience and with this being said the natural reaction of any parent is to protect their child with every fiber of their being. Below we will briefly discuss what rights and responsibilities you as parent have in respect of your child in terms of the Children’s Act 38 of 2005.

It is important to note that this Act was promulgated to help keep families together and to ensure that a child’s best interests are upheld at all times, whether by their parents or by their family. Family Law in itself is a complex field of law, due to the fact that when a court has to make a determination in a family matter, the court has to consider the legal and personal issues of the matter and how these issues will affect the child in question. Evidently each matter will differ from the previous as no one circumstance will ever be a mirror image of the other. What further complicates family matters is that the child has a right to be heard, and once again we re-iterate that no one personality will be the mirror image of the other. Therefore each case has to be seen in isolation and this way the best interest of the child will be upheld at all times.

Essentially the Act identifies four rights and responsibilities in respect of a child that exist for a parent.

1. Guardianship

This begs the question as to what guardianship is. Easily explained this purely refers to the “administrative” part of taking care of a child. Guardianship can further more be distinguished as natural guardianship, which naturally ascends on parents and then there is legal guardianship, which guardianship has been imposed on an individual by way of a court order.

When a child is born in wedlock, the married parents automatically have natural and legal guardianship, more commonly referred to as full guardianship.

In the event that a child is born out of wedlock the biological mother automatically receives natural and legal guardianship (full guardianship). The biological father automatically receives natural guardianship but will, however, have to approach the relevant court to have his legal guardianship confirmed.

2. Contact

Contact is exactly what the word suggests. Regular and frequent contact to a child. Each parent, whether married or unmarried, has the right to keep in touch with their child even in the event that the parents do not live in the same home. By providing parents with this right, the act envisages to ensure that parents build a strong relationship with their children.

3. Care

Each parent has the responsibility towards caring for their child, which entails that a parent has to tend to their child’s daily needs such as providing a safe home, food, education and love. Both married and unmarried parents automatically acquire this right to their child.

4. Maintenance

A parent has the responsibility to financially maintain their child. Both parents therefore have to provide for the child’s needs. Both married and unmarried parents automatically acquire this responsibility towards their child.

Although reference is made purely to married or unmarried parents above, we would like to draw your attention to the following scenario’s and how the rights and responsibilities of parents are affected in these circumstances:

1. Divorcees

Co-holders of parental rights and responsibilities can make decisions about the care, contact, maintenance and guardianship of a child. They can also make a decision that will affect the child’s living conditions, education, health, personal relationships or the child’s wellbeing. All the above is subject to what has been ordered by the court and what has been endorsed as in the child’s best interest by the offices of the Family Advocate.

2. Adoption

Where individuals have adopted a child, these adoptive parents, automatically receive all rights and responsibilities in respect of their adopted child.

3. Artificial fertilization

In the event that a child is born by way of artificial fertilization (IVF), whether it be by means of your partner’s own sperm/ovum or a donor sperm/ovum, that child will automatically be deemed as the parties’ biological child and they will receive all rights and responsibilities as stipulated in the Act.

4. Surrogacy

The Act has some very strict requirements that need to be followed when a surrogate is used to conceive a child. It is very important to note that a legal agreement has to be confirmed by a court in which all rights and responsibilities of the surrogate and the biological parents are stipulated.
In summary, it is therefore clear that there are many ways in which the rights and responsibilities towards a minor child can be determined and/or exercised. It is however of utmost importance to ensure that you are properly advised pertaining to your rights and responsibilities towards your minor child, specifically tailored to your circumstances.

Note for reader
This article is of a general nature and is not to be utilised or quoted as legal advice. We do not accept any liability for any errors or omissions nor for possible loss or damage arising from reliance on the information contained in this article. Should you require further or more detailed information, kindly contact your legal advisor.