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Things about child custody and parental rights Things about child custody and parental rights

Bronze medal Reporter adv William Posted 6 Jan 2019 Read More News and Blogs
Things about child custody and parental rights


In a married relationship parents share their child custody. When they separate or divorce custody is normally given to a single parent.During divorce settlement South African courts normally allows guardianship to both parents. In certain condition, the court may grant sole guardianship to one parent or somebody who is not the biological parent. The High Court is legally the upper guardian of all South African children. If a guardian is not executing their responsibilities the High Court can be approached to intervene and has the power to terminate a guardianship and can transfer care of the child to another person or parent. Prior to the new Children’s Act 38 of 2005, the terminology "custody and access" were used has also defined as the “parental rights and responsibilities” that parents or other parties may have, and award equal and joint guardianship status on parents of children born from a spousal relationship.


Parental rights and responsibilities


The rights and responsibilities of a parent is set out in the Children’s Act and can be defined as a complex set of rights, duties and responsibilities which have to be performed in the best interest of the child. These rights and responsibilities includes caring of the child, maintaining contact with the child, to act as a guardian over the child and to contribute to the maintenance of the child.

Both parents of a child have equal rights and responsibilities, but when they are not living together, rights and responsibilities may be given to one parent, either by court order or agreement between the parents. However, a difficulty may arise where parents of a child were not married and the question of paternity arises that result in parental responsibilities and rights becoming a dispute.



Type of custody

Sole custody means that the custodial parent will be entirely responsible for the rise and care of the child. Joint custody indicates to both parents having physcial and legal custody over the child. Physcial custody means that the parents have the right to live with the child and legal custody means that both parents will be responsible for the bringing up the child. Sole custody is granted in cases where one parent is abusive towards the child or a parent is regarded a the unfit parent.


Child maintenance


When it comes to our children, strong commitment and love isn't negotiable.  Unfortunately, not all parents honour this duty, generally their legal duty to maintain the welfare of their children. The child maintenance system guarantee that all parents honour their duty to maintain their children. Parents have a responsibility to maintain the child according to their respective means.

The Maintenance Amendment Act No. 9 of 2015 was passed on 9 September 2015.This Act is seen as the next step in what has been over a decade of initiatives by the Department of Justice to strengthen the South African maintenance system and to put into place remedies to deal with those who fail to follow with their obligation of maintenance. If he / she fails to follow with the terms of the maintenance order, and the order remains unsatisfied for a period of 10 days, you can apply to the maintenance court in the area you live in for authorization to issue a warrant of execution, an order for the attachment of debt, or a garnishee order. 





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