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Knowing and Understanding Your Parental Rights and Responsibilities!

Being a parent comes with a lot of joy but also a lot of responsibility, it can be overwhelming when we try to understand the laws that apply to parents in South Africa. However, it is important to understand not only your rights as a parent but also your responsibilities towards your child.

There are various South African acts that define and deal with Parental Rights and Responsibilities which include The Children’s Act 38 of 2005, The Maintenance Act 99 of 1998, The Guardianship Act 13 of 1972, The Domestic Violence Act 116 of 1998, and The Adoption Act 72 of 1996. Below we will dissect the Children’s Act 38 of 2005 as it is the most comprehensive. We will explain a bit more about what the South African Government expects from parents.

The Children’s Act, 38 of 2005

The Children’s Act is a legal document that deals with all aspects relating to children, it defines parental responsibilities and rights of parents; gives effect to certain rights of children as provided for in the Constitution of South Africa; and it makes provision for children in so far as their care and protection is concerned.

Rights and Responsibilities of Parents

Section 18, contained under Chapter 3 of the Children’s Act extensively defines parental responsibilities and rights. Section 18(2) states that parental rights and responsibilities that a person might have in respect of a child include the right and responsibility: –

a) to care for the child;

Every parent has a responsibility to provide their child with a suitable and safe place to live; living conditions that are conducive to the child’s well-being, health and development; and the necessary financial support. It also means safeguarding and promoting the child’s well-being; guarding against any infringements of the child’s rights; protecting the child from maltreatment; guiding the child’s behaviour in a humane manner; directing and securing the child’s education; maintaining a good and healthy relationship with the child, and ensuring that the best interests of the child are the paramount concern at all times.

b) to maintain contact with the child;

Every parent has the right to have contact with his/her child. Whilst having contact with a child can be seen as a right, there is also an important responsibility attached to it. It would always be in the best interest of a child to have contact with both parents unless there is the existence of circumstances that prove otherwise. Therefore a parent has a responsibility to maintain contact and be actively involved in their child’s life.

A parent also has the responsibility to ensure that they encourage a relationship between a child and the other parent, and should not act in a way that can be seen as parental alienation.

Parental Alienation can be defined as the psychological manipulation of a child into demonstrating unnecessary and unjustifiable disrespect, fear or even hatred towards a parent. This includes tactics such as constantly criticizing or belittling the other parent, stopping the child from talking about the other parent and even limiting contact, and removing any presence of the other parent from the child’s life.

Parental alienation is a complex issue because many parents do believe that they are protecting their child from getting hurt by removing the other parent.

Even though the consequence of actual parental alienation can be traumatic, we must remember that there are also cases where limited contact with the other parent is paramount for the child’s safety. Where an ex may have been abusive in the past, it is understandable that a parent takes it upon themselves to warn the child not to get too close. But keep in mind that this should always be done in a lawful manner.

It is common for parents to think that contact and maintenance go hand-in-hand, however, the issues of contact and maintenance are totally separate from each other, it’s very important to know that the amount of maintenance paid by a parent will not dictate the contact that he/she has with a child.

c) to act as guardian of the child

A biological parent of a child will automatically obtain guardianship over their child; however, a court may award any other person with guardianship over a child.

In terms of Section 18(2) of the Children’s Act, if a person acts as a guardian of a child, they have a responsibility to safeguard the child’s property; to help or represent the child in any administrative, contractual and any other legal matters.

The guardian also has a responsibility to give or refuse consent regarding the child which is required by law. Consent includes consent to marriage; the adoption of the child; the child’s removal from the Republic of South Africa; the application of the child’s passport; and any alienation or encumbrance of the child’s immovable property.

Unless decided otherwise by a court of law, all of the persons that have guardianship have to consent to the above.

d) to contribute towards the maintenance of the child.

Both parents (including adoptive parents) have the responsibility to support their children financially. A child is entitled to basic necessities which include food, housing, education and health care.

The Maintenance Act 99 of 1998 defines and extensively deals with the maintenance of children.

Maintenance is the regular payment of a certain amount towards the needs of the child, therefore the purpose of maintenance is to cover the needs that the child has which are the daily and monthly needs.

Usually, if one parent has primary custody over a child, the other parent has to pay maintenance, however, this is not always the case. The question of who is liable to pay maintenance will be determined by the court based on the circumstances of each matter.

The relationship between the parents is irrelevant when it comes to determining the responsibility of maintenance towards the child.

Why is it important?

Knowing and understanding your parental rights and responsibilities is essential as it will guide you to provide your child with the best possible upbringing.

Having an understanding of what the law expects from parents will also help you to determine whether those around act in accordance with the law, and if not you will be able to confidently take the necessary legal action.

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Navigating family issues can be difficult. Our family law department has extensive knowledge and experience in dealing with a range of family matters in an empathetic and understanding matter.

If you need any assistance or guidance with any Family Law related matter, please contact us.

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