Custody & Access

Before the creation of the Children’s Act, 38 of 2005, “contact and primary residence” in respect of children were commonly referred to as “custody and access” to children. Under the Children’s Act, these concepts are now found under the umbrella title of “Parental Responsibilities and Rights”. The rights found under the Parental Responsibilities and Rights must be applied in terms of “best interest” principle, in other words, a parent will only acquire and exercise these rights if it is in the best interest of the minor child.

Typically one parent will be vested with the primary residence of that child whereas the other parent will acquire reasonable contact with that child. In terms of Section 18 of the Act, a parent who acquires Parental Responsibility and Rights will acquire either specific or full rights in respect of a child.

It is important to note that Parental Responsibilities and Rights include the responsibility and the right to care for the child, to maintain contact with the child, to act as a guardian of the child and to contribute of course to the maintenance of the child.

In terms of Section 19 of this Act the biological mother of a child automatically acquires full parental responsibilities and rights in respect of a child. The position in respect of the father is somewhat different. The Act specifically differentiates between married and unmarried fathers. If a father is in fact married to the mother of the child, the father acquires full Parental Responsibilities and Rights in respect of the child at the birth of the child due to the fact that he is married to the child’s mother.

The position in respect of unmarried fathers is different in that the father could potentially acquire full parental rights and responsibilities if he satisfies certain conditions which are stated in Section 21 of the Act. In terms of Section 21, the father would acquire the said rights if at the time of the child’s birth he was living with the mother in a permanent life partnership or if regardless of whether he lived with the mother or not he consents to himself being identified as the child’s father and he

  1. Contributes towards the child’s upbringing for a reasonable period, and he
  2. Contributes or attempted in good faith to contribute towards the expenses in connection with the maintenance for the child.

It is really important to note that should any dispute in this regard arise between the parents as to what rights the father has acquired, the matter must be referred to mediation first before any party may approach the Court for a ruling in this regard. One should also remember that not only is the father allowed to approach the High Court, but he may now also approach the Regional Court or the Children’s Court for the appropriate relief.

For more information please contact our office for a consultation on 012 664 9400.