Parental Rights and Responsibilities, and Guardianship

It is commonly known that Parents must take care of and make important decisions on behalf of their child or children.

Parental rights and responsibilities include the care of a child, contact with the child, guardianship and maintenance of the child. South African law recognises this, which imposes certain parental rights and responsibilities upon the parents and guardians.

Many South Africans often misunderstand guardianship. 

The term guardianship is focused on making important decisions on behalf of the child, such as administering and safeguarding the child’s property and even giving or refusing consent to some issues involving the child.   

Guardianship in South Africa

In South Africa, guardianship refers to the legal relationship between a guardian and a minor or incapacitated adult. A guardian is a person who is appointed by the court to make decisions on behalf of the minor or incapacitated adult, who is known as the ward.

There are several types of guardianship in South Africa, including:

Guardianship of minors: This refers to the legal relationship between a guardian and a minor under the age of 18. The guardian is responsible for the care and upbringing of the minor, and has the authority to make decisions on their behalf.

Guardianship of adults: This refers to the legal relationship between a guardian and an adult who cannot make decisions for themselves due to mental or physical incapacitation. The guardian is responsible for making decisions on behalf of the incapacitated adult and must act in their best interests.

Temporary guardianship: This refers to a temporary guardianship arrangement, which may be put in place if the parents of a minor are unable to care for them due to temporary circumstances, such as illness or travel.

In South Africa, guardianship is governed by the Children’s Act of 2005 and the Mental Health Care Act of 2002.

Have you ever wondered what rights and responsibilities you may have as a Parent or Guardian?

We are often excited about the arrival of a child, but have you stopped and considered what it actually means in terms of our law to be a parent or a guardian?

In terms of the Children’s Act [No. 38 of 2005], Parents have the following rights and obligations:

1.     To care for a child;

2.     To keep in contact with a child;

3.     To act as Guardian of a child; and

4.     To contribute to the maintenance of a child.

Even though our legislation has spelt out the rights and responsibilities of Parents, there are several factors that you should consider when determining your specific rights and responsibilities.

Who Has Parental Rights and Responsibilities?  

Both Parents of a child generally have equal rights and responsibilities.

This can vary if a Court makes a competent order to the contrary.

However, unless a Court orders otherwise, all guardians of a child need to consent regarding matters as set out in subsection (3) (c) of the Children’s Act.

We can divide parental authority into three main groups: guardianship, care (custody) and contact (visitation rights).

What is “Care”?

Care, a wide-ranging concept defined in the Act, is commonly known as custody. Among other things, it’s about safekeeping and protecting.

It deals with providing a child with a suitable place to live and promoting and encouraging their health, development, social well-being and other responsibilities.

What is “Contact”? 

The parent with whom the child does not reside generally has the right to contact. This means that the ‘away’ parent has the right to contact the child and then develop and maintain a personal relationship with the child.

This contact can be done by allowing the parent to see the child at certain times or even communicate through various platforms with the child.

In this case, the parent with whom the child lives has the responsibility to allow the ‘away’ parent to keep this form of contact and even inform them of any change in the child’s residence.

It may be considered a criminal offence if the primary caregiver fails to do this.

What is the “Guardianship” of a minor child? 

Guardianship will assist the child in all ways, including medical treatment and legal, administrative, and contractual matters.

It can also include refusing consent when it comes to a child’s marriage, adoption, removal or departure from South Africa and even an application for a passport or consenting to the sale of a child’s immovable property.

Who Is the Guardian of a Child? 

It is often misunderstood that guardianship relates to one person. The common belief is that it rests with one parent – the person with whom the child resides.

Whilst it could be the case that a child may reside with their Guardian, these beliefs about the custodial parent only, are untrue, and this is not how guardianship is evaluated.

It does not automatically rest with either the mother or the father – it can be with both parents. It can even be with other parties who are not the parents.

When a person is the Guardian of a child, they have the responsibility to make major decisions that are related to the child. 

It may often occur that more than one person will have guardianship of a child.

In this case, all Guardians of the child will have to consent to certain major decisions related to the child. Our courts usually grant both parents guardianship in terms of the divorce settlement.

This is dependent, though, upon the child’s best interest. In certain circumstances, a court may grant sole guardianship to only one Parent or even to someone that is not a biological Parent.

Can you be removed as the guardian of a child? 

Legally, the High Court is the upper guardian of all children in South Africa.

Hence, if someone believes that a Guardian is not fulfilling their required duties, the High Court can intervene and terminate guardianship under certain circumstances.

The Court Has The Power And Authority To Terminate A Person’s Guardianship and transfer care of the child to someone else.

What Happens When Someone Is Not A Suitable Guardian? 

The best interests of the child are always of the highest importance.

Therefore, if it is required, the Court has the power to appoint a legal Guardian by making Application to the High Court. This application can be brought by any person interested in the child’s well-being, development, and care.

As the main focus is on the child’s well-being and ability to thrive in its immediate situation, these matters are decided on a case-by-case basis.

Factors such as the relationship between the person applying for guardianship and the child are also considered.

When a court appoints a legal guardian, this does not necessarily affect the rights and responsibilities of the child’s parents.

Becoming a Parent is definitely an exciting journey filled with incredible moments. However, Parents and Guardians need to be mindful of what duties they have towards the child.

Child Custody and Care

Guardianship South Africa

We must realise that the custody or care of a child means physical control over the child. It concerns the safekeeping and protection of that child. It involves the supervision of their daily life, including the provision of:

• Food, care and comfort.
• Everyday needs.
• A proper home

In a marriage, Parents share custody of their child.

If they separate or divorce, guardianship generally continues to stay with both Parents.

Access/Contact

Access to, or contact with a child, generally means the rights and privileges of the non-custodial parent, regarding that ‘away’ parent seeing and spending quality time with their child.

When the non-custodial parent is granted reasonable access at the time of a divorce, they would be well advised to request to have a clear stipulation of precisely what is meant as reasonable contact regarding their situation.

Further, and equally important, the parent who has been granted primary residence (and it could be either parent) may not impose unreasonable conditions or restrictions on said reasonable contact by the other parent.

However, they can make a final decision in cases where the Parents disagree about their rights and responsibilities concerning the child.

Unmarried Biological Fathers 

The Children’s Act still does not automatically grant natural parental rights to biological fathers, as it does for mothers.

An unmarried biological father will only have automatic parental rights and responsibilities according to the following:

• When the child was born, he lived in a life partnership with the mother.
• If he is registered as the child’s biological father, in terms of the Births and Deaths Registration Act.
• If he pays damages in terms of customary law and also consents to be identified as the child’s father.
• If he applies for an amendment to be effected on the birth certificate.
• If he has contributed in good faith to the child’s upbringing within a reasonable period and has paid or attempted to pay maintenance.

Conclusion: 

Under certain circumstances, you can automatically obtain parental rights and responsibilities. In other, different conditions, you may have to apply to obtain same.

Lastly, a competent court may sometimes remove parental rights and responsibilities from you.