Getting to know your parental rights and responsibilities

10 May 2024

In South Africa, parental rights and responsibilities concerning a child are delineated in the Children’s Act 38 of 2008. These encompass a complex array of duties and privileges that must be executed with the child’s best interests at heart. These encompass caring for the child, maintaining contact, acting as a guardian, and contributing to their upkeep.

These facets can be viewed as distinct parental entitlements: the right to nurture the child, maintain communication, and serve as a guardian. The care aspect encompasses custody, ensuring a suitable living environment, and safeguarding against harm. Contact, termed access in South African law, fosters ongoing personal interaction between a child and the non-residential parent, utilising various communication mediums.

Guardianship involves managing the child’s affairs, including property matters, legal consent, and decisions about marriage or departure from South Africa. Additionally, parents are obligated to provide financial support for the child’s welfare, education, and basic needs.

A fundamental principle in South African law prioritises the best interests of the child in any legal proceedings involving them. The court’s focus is not on an ideal parent but on determining the least harmful arrangement for the child’s development.

Maintaining a relationship with the non-primary caregiver is vital for children born out of wedlock or following divorce. Contact rights should only be denied if it’s proven detrimental to the child.

It’s noteworthy that parental rights can be shared among multiple individuals regarding the same child.

The establishment of the Family Advocate in 1990 aimed to safeguard the welfare of children in divorce cases. This entity aids courts in assessing the children’s best interests, offering reports and recommendations to inform legal decisions. Its role has expanded significantly with the enactment of the new Children’s Act, now including mediation services and broader responsibilities.

The Family Advocate’s authority is outlined in the Constitution and specific legislation. Parties involved in divorce proceedings can request the Family Advocate’s intervention, or the court can authorise their involvement, particularly in cases of welfare concern.

Various sections of the Children’s Act allow for the registration of parental responsibility agreements and the referral of disputes to the Family Advocate’s office. Maintenance inquiries may also involve their investigation into the child’s welfare.

The Family Advocate operates impartially, striving for the child’s best interests in matters of care, contact, and guardianship. While they don’t serve as legal representatives, they offer guidance and recommendations to courts and litigants. Offices are located nationwide, assisting in diverse legal matters impacting children’s welfare.

For any contractual assistance, contact an attorney at SchoemanLaw.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Robyn Shepherd

Robyn Shepherd obtained her LLB degree from the University of the Western Cape in 2016. She joined SchoemanLaw Inc as a Professional Assistant in February 2022 and was admitted to... Read more about Robyn Shepherd


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