What Are Parental Responsibilities and Rights?
Section 18 of the Children's Act provides for the parental responsibilities and rights that a person may hold in respect of a child.
A person may hold full parental responsibilities and rights, or only specific responsibilities and rights, depending on the circumstances.
Caring for the Child
Care involves responsibilities relating to the child's daily life, protection, wellbeing, development and living environment.
Maintaining a Relationship
Contact concerns maintaining a personal relationship with the child through appropriate communication, visits and other forms of interaction.
Important Legal Decisions
Guardianship includes important legal responsibilities relating to the child and the giving or withholding of certain consents required by law.
Financial Support
Parents have responsibilities relating to the financial support of their children in accordance with the applicable law and the child's needs.
What Does Guardianship Mean?
Guardianship is often misunderstood as simply meaning that the child lives with a particular parent. In law, guardianship has a more specific function.
A guardian may be responsible for administering and safeguarding a child's property and property interests, assisting or representing the child in legal matters, and giving or refusing consents required by law.
Certain decisions require the consent of all persons who hold guardianship, unless a competent court orders otherwise. These include specified matters such as a child's departure or removal from South Africa and an application for a passport.
The parent with whom a child primarily lives does not necessarily hold parental responsibilities and rights exclusively. Care, contact and guardianship are distinct legal concepts and should not be treated as interchangeable.
Who Has Parental Responsibilities and Rights?
The way in which parental responsibilities and rights are acquired depends on the relationship between the parents and the circumstances surrounding the child.
Biological Mothers
Subject to the specific provisions of the Children's Act, a biological mother, whether married or unmarried, has full parental responsibilities and rights in respect of her child.
Marriage to the Mother
A biological father has full parental responsibilities and rights where the requirements of section 20 of the Children's Act are met.
Section 21
An unmarried biological father may acquire full parental responsibilities and rights automatically where the statutory requirements in section 21 are satisfied.
Caregivers & Family Members
Other people with a sufficient interest in a child's care, wellbeing or development may, in appropriate circumstances, approach a court for specified parental responsibilities and rights.
What Rights Does an Unmarried Father Have?
The legal position of unmarried fathers is one of the areas most frequently misunderstood.
An unmarried biological father does not necessarily need a court order before he can hold parental responsibilities and rights. Section 21 of the Children's Act provides circumstances in which he acquires full parental responsibilities and rights automatically.
Permanent Life Partnership
An unmarried father acquires full parental responsibilities and rights if, at the time of the child's birth, he is living with the mother in a permanent life partnership.
The Alternative Section 21 Requirements
Where the permanent-life-partnership requirement is not met, section 21 provides another route involving identification as the child's father or the relevant customary-law requirement, together with good-faith contributions or attempts to contribute to the child's upbringing and maintenance for a reasonable period.
Whether an unmarried father has acquired full parental responsibilities and rights under section 21 can depend on the particular facts. Where the parents dispute whether the statutory requirements have been fulfilled, the Children's Act provides for the dispute to be referred to mediation.
Are Contact and Maintenance the Same Issue?
No. Contact with a child and the duty to contribute towards a child's maintenance are separate legal issues.
A dispute about unpaid maintenance should therefore not simply be dealt with by withholding contact. Likewise, a parent should not regard maintenance as payment in exchange for time with a child.
Failure to pay maintenance does not automatically cancel contact rights. Maintenance disputes should be addressed through the appropriate maintenance enforcement procedures, while contact arrangements remain governed by the child's interests and the applicable agreement or court order.
Can Grandparents or Other Family Members Obtain Rights?
Parental responsibilities and rights are not limited in every circumstance to biological parents.
A grandparent or another person who has a genuine interest in a child's care, wellbeing or development may, depending on the circumstances, apply for an order granting care or contact.
The existence of a biological relationship does not by itself determine the outcome. The court considers the applicable statutory factors and the child's best interests.
What Happens When Parents Disagree?
Disputes can arise about where a child should live, how much time the child should spend with each parent, schooling, relocation, travel, medical decisions or the exercise of guardianship.
Not every disagreement needs to become lengthy litigation. Depending on the dispute, parents may attempt to resolve the issue through discussion, mediation, the Family Advocate or other appropriate professional assistance.
Identify the Actual Dispute
Determine whether the disagreement concerns care, contact, guardianship, maintenance or another decision affecting the child.
Consider Existing Agreements or Orders
Any parenting plan, parental responsibilities and rights agreement or existing court order should be considered before further steps are taken.
Attempt Appropriate Resolution
Mediation or engagement through the appropriate family-law process may help parents resolve the dispute without unnecessary litigation.
Approach the Court Where Necessary
Where agreement cannot be reached, or urgent intervention is required, an appropriate court may be approached for an order regulating the relevant parental responsibilities and rights.
What Does the Child's Best Interests Mean?
The best-interests principle requires the focus to remain on the child rather than treating a parenting dispute as a contest between adults.
A child's age, needs, relationships, safety, emotional security, development and individual circumstances may all become relevant when arrangements are considered.
Care and contact proceedings should not be used as a means of punishing the other parent. The legal enquiry remains focused on what arrangement appropriately protects and promotes the child's best interests.
What Is a Parenting Plan?
A parenting plan is a written arrangement dealing with the exercise of parental responsibilities and rights where parents or other co-holders need to regulate how those responsibilities will operate in practice.
A well-drafted parenting plan can provide clarity and reduce recurring conflict by addressing the practical arrangements affecting the child.
Where the Child Lives
The plan can regulate the child's primary residence and practical living arrangements.
Time With Each Parent
Contact schedules can address ordinary weeks, weekends, school holidays and special occasions.
Maintenance
Appropriate arrangements concerning the child's maintenance and expenses may be recorded.
Schooling & Upbringing
A parenting plan can address schooling, religious upbringing and other practical matters concerning the child's life.
Can a Parenting Plan Be Made Formal?
Yes. Depending on the circumstances and statutory requirements, a parenting plan can be registered with the Family Advocate or made an order of court.
Formalising the arrangements can provide greater certainty about each parent's responsibilities and reduce disputes about what was previously agreed.
A useful parenting plan should do more than say that parents will exercise "reasonable contact". Practical arrangements concerning ordinary contact, holidays, special occasions, communication and decision-making can substantially reduce future conflict.
What About Major Decisions Affecting the Child?
Holding parental responsibilities and rights means that some decisions cannot always be made as though the other parent does not exist.
The Children's Act regulates the exercise of parental responsibilities and rights, including guardianship decisions and the circumstances in which the views of other co-holders must be given due consideration.
This becomes particularly important in disputes concerning relocation, international travel, passports and other decisions that may significantly affect the child or another person's exercise of parental responsibilities and rights.
What If One Parent Wants to Relocate?
Relocation can become a significant dispute where the proposed move will affect the child's relationship or contact with another parent.
International relocation also raises guardianship considerations because the Children's Act specifically regulates consent to a child's departure or removal from South Africa.
A parent should not assume that being the child's primary caregiver means they may make every relocation decision unilaterally. The parental responsibilities and rights held by both parents and the effect of the proposed move on the child must be considered.
Can Parental Responsibilities and Rights Be Changed?
Parental responsibilities and rights are not necessarily fixed permanently in their original form.
Section 28 of the Children's Act provides for applications to suspend, terminate, extend or circumscribe the exercise of parental responsibilities and rights in appropriate circumstances.
When such an application is considered, the child's best interests and the relationship and commitment between the child and the relevant person are among the factors that may be considered.
When Should You Get Legal Advice?
Early advice can often prevent a disagreement about children from developing into a much larger dispute.
Contact Is Being Prevented
One parent is preventing or substantially interfering with the other parent's contact with the child.
Your Legal Status Is Unclear
There is disagreement about whether an unmarried father has acquired parental responsibilities and rights.
A Major Decision Is Disputed
Parents cannot agree about travel, relocation, a passport or another significant issue affecting the child.
You Need Clear Arrangements
Separation has created uncertainty about residence, contact, holidays, communication or other parenting arrangements.
The Bottom Line
Parental responsibilities and rights determine far more than where a child lives. They encompass care, contact, guardianship and the responsibility to contribute towards maintenance.
The legal position differs depending on the circumstances in which those responsibilities and rights were acquired, and disputes should be approached with the child's interests rather than parental conflict at the centre.
Clear, workable arrangements can reduce conflict and provide children with greater stability. Where parents cannot agree, the law provides mechanisms to regulate parental responsibilities and rights with the child's best interests as the central consideration.
Parental Rights, Care & Contact
Danel Campbell Attorneys assists parents with parental responsibilities and rights, parenting plans, care and contact disputes, guardianship, relocation and related family-law matters.
Explore Family Law Services →This article provides general information about parental responsibilities and rights in South Africa and does not constitute legal advice. The rights held by a particular parent or other person, and the appropriate process for resolving a dispute, depend on the facts of the matter, existing agreements or court orders and the applicable provisions of the Children's Act 38 of 2005.