by Tanian Filander, Associate Attorney & Notary
“My ex won’t let me see the child/ren, can you help?” is a common message we receive regularly.
Whether you're divorced from the other parent, separated, or never married—you no doubt want to spend time with your kids on a regular basis. And if the other parent is preventing that from happening, you should know your rights and what you can do to enforce them.
Your ex-partner generally cannot stop you from seeing your child/ren unless a Court decides that there would be a risk of harm to them. If your ex-partner is willing to consider mediation, then this is going to be better for you and your child/ren. Even if your ex-partner isn’t willing to mediate, there are steps you can take to improve the situation before taking the final steps of going to court.
The Children’s Act 38 of 2005 (“Children’s Act”) provides that a parent has the following rights and responsibilities towards his/her child/ren:
- to care for a child/ren;
- to keep contact with a child/ren;
- to act as guardian of a child/ren; and
- to contribute to the maintenance of a child/ren.
Who has full parental rights?
1. The biological mother of a child/ren has full parental rights and responsibilities regarding the child/ren, whether she's married or unmarried.
2. The biological father of a child/ren has full parental rights and responsibilities in respect of the child/ren if he's married to the child/ren's mother or if he was married to the child/ren’s mother at the time of the child/ren's conception, birth or any time between the child/ren’s conception and birth.
3. An unmarried biological father automatically acquires full parental responsibilities in respect of the child/ren if:
a. at the time of the child/ren's birth, he is living with the mother in a permanent life partnership, OR
b. if he, regardless of whether he has lived or is living with the mother:
i. consents to be identified as the child/ren's father, or successfully applies to be recognised as the child/ren's father, or pays damages in terms of customary law;
ii. contributes or has attempted in good faith to contribute to the child/ren's upbringing for a reasonable period; AND
iii. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child/ren for a reasonable period.
If the parents have automatically acquired full parental rights and responsibilities in terms of the Children's Act, they're both responsible for the child/ren unless a Court orders otherwise. When a child’s parents are not married, the father still automatically acquires parental rights and responsibilities if he meets the requirements set out above.
Possible Recourse
The Office of the Family Advocate may be able to assist you. They can help you draw up a Parenting Plan and/or a Parental Rights and Responsibility Agreement (“PRRA”), allowing both you and your ex-partner to agree to care and contact with the child/ren. This arrangement might involve overnight stays, or meeting for a certain time each week.
Alternatively, a family law mediator may be able to help you reach care and contact arrangements with your ex-partner. A mediator is a person trained to help reach an agreement by talking with both parents. A mediation agreement has no legal force, but a legal practitioner can help you apply to Court to make it legally binding.
If other methods are unsuccessful, you can apply to the Children’s Court for intervention. If you’re going through a divorce, and your spouse is denying you care and contact with your child/ren, Rule 43 in the High Court and Rule 58 in the Regional Court provide for an interim remedy for care and contact arrangements with your child/ren.
The best interests of your child/ren will be the Court’s main concern. The Court will not grant an order in your favour unless doing so would be better for the child/ren than making no order at all. However, Courts view a child/ren’s contact with their natural parents as important and will usually only refuse care and contact completely or partially (under supervision) if they believe there is a possible risk of harm to the child/ren.
The Courts will usually appoint a social worker to investigate the matter and they will base their decision on the social worker’s report. They are not obligated to accept the report and will consider evidence from the parties.
The difference between a Parental Responsibilities and Rights Agreement and a Parenting Plan
A Parental Responsibilities and Rights Agreement (governed by Section 22 of the Children’s Act) is used to acquire Parental Responsibilities and Rights by way of someone who is already a holder of such Responsibilities and Rights, consenting to you obtaining such Responsibilities and Rights in respect of a child/ren.
A Parenting Plan (governed by Section 33 of the Children’s Act) on the other hand, is used to govern how Parental Responsibilities and Rights will be exercised by holders of such Responsibilities and Rights in respect of a child/ren.
Already have a Court Order? This is how you can enforce it.
Section 35 of the Children’s Act, “Refusal of access or refusal of exercise parental responsibilities and rights”, states that any person who refuses a person who holds parental responsibilities and rights in terms of an order of Court (Parenting Plan, PRRA or Settlement Agreement in respect of Divorce Proceedings) to exercise those rights, is guilty of an offence and liable to a fine or a period of imprisonment not exceeding a year.
The proper course of action would be for you to urgently apply to the Children’s Court for a court date and request that the other parent who is denying you care, and contact appear in Court with you and give a detailed justification for his/her decision.
The Court will issue a warrant of arrest of the other parent and hold it over unless the other parent has sufficient reasons, as to why they are withholding the child/ren such as you arrived intoxicated and belligerent, that you threatened to abduct the child/ren earlier in the week, and so on. If the violating parent doesn't comply once again, the court may authorize the execution of that warrant.
If you are needing assistance with this type of matter, feel free to contact us today to chat through your circumstances: tanian@spencelaw.co.za and info@spencelaw.co.za
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