<--- Back to contents Chapter 7 - Family Law and Violence against Women Custody, guardianship and support of childrenParents have custody and guardianship of their children, and a legal duty to support them.
Custody
Custody means: - providing a home for the children
- feeding and supporting the children
- looking after the day-to-day needs of the children
- educating the children
When parents live together, they share the custody of the children. When they separate or divorce, the court usually gives custody to one parent, either the father or the mother. Often the mother gets custody and the father has guardianship of the children.
Guardianship
Guardianship means: - looking after the property of the children
- acting for the children when they enter into contracts
- acting for the children in court cases
- consenting to the marriages of children if they are minors
The father is usually the guardian. He is called the 'natural guardian'. A natural guardian has a duty to support her or his children. If for some reason he can't carry out his duties, the court appoints a 'legal guardian' for the children. A legal guardian does not have a duty to support the children.
The duty to support
Both parents have a legal duty to support their children. The law says that children whose parents do not give them reasonable care can sue their parents. Then the court may say the children must go to a foster home or children's home or a relative. The duty of parents to support their children ends when the children become independent, for example when they marry, or when they reach the age of 18 and are self-supporting. The Births and Deaths Registration Amendment Act (No 1 of 2002) lowers the age of majority from 21 to 18 years to keep in line with the Constitution (section 28 of the Constitution says a child is anyone under the age of 18 years). The Births and Deaths Amendment Act also says a child can be registered in the surname of either the father or the mother or under the surname of both the father and the mother joined together as a double-barreled surname. The mother also no longer has to get the written consent of the father if the child wants to change his or her surname (for example, if the mother has sole guardianship of the child). One parent can apply to the Maintenance Court for the other parent to pay support for their children. If the children are not living with the mother or the father, the person who is looking after them can apply for maintenance from the parents. For example, if a child is living with the grandparents, the grandparents can apply to get maintenance from the father and the mother of the child. See PROBLEM 3: Getting maintenance through the Maintenance Court
See Maintenance Act of 1998 State child support grantsApply to the Department of Welfare for these grants. You will have to go through a means test to qualify for child support or care-dependency grants. - Child support grant: Any parent or whoever is looking after a child can apply for financial help, if you cannot afford to support the child. You can apply for this grant for any child who is 0-7 years old.
See SOCIAL WELFARE, Child support grants
- Foster care grant: This is for children who are placed in the care of foster parents by the Children's Court, because they are considered to be children at risk. The foster parent is not the biological parent of the child.
See SOCIAL WELFARE, Foster care grants
- Care-dependency grant: You can apply for this if you support a child who is severely disabled and needs special care.
See SOCIAL WELFARE, Care-dependency grants
Legitimate children
Children are legitimate if their parents were (civil) married at the time they were conceived or born or got (civil) married any time after that. When a legitimate child is born, its father is the child's natural guardian. If the father dies, the mother usually becomes guardian. Children of African customary unionsIf a couple were married by African customary law, but they did not also have a civil marriage, the law says the children are legitimate. The natural father has rights over his children and a duty to support them. According to customary law, the mother does not usually become the children's natural guardian if the father dies or is unfit to be the guardian. The father's oldest male relative becomes the children's guardian. But the mother can ask the High Court to appoint her the guardian.
Illegitimate children
Children are illegitimate if their parents were not married at the time they were born and do not marry later. The children are usually in their mother's custody. If their father tries to take them away from the mother, she can ask the court to make him give the children to her. The mother of an illegitimate child is its natural guardian, and has to support the child. The natural father has a legal duty to support the child, and must pay maintenance every week or month for the children as they grow up. If he refuses, the mother can get a maintenance order from the Magistrate's Court to make him support the child. A man has a duty to pay maintenance for all children he fathers, from any woman. See PROBLEM 3: Getting maintenance through the Maintenance Court
See Maintenance Act of 1998 The natural father of an illegitimate child has automatic rights of access (to visit with the child), unless a court takes away these rights. If the natural father of an illegitimate child wants custody or guardianship, he has to apply to court for these rights. The court may set conditions when it grants these rights. See Unmarried fathers Children of Muslim or Hindu marriagesIf a couple were married by an imam in the Muslim religion, or a priest in the Hindu religion, but they did not also have a civil marriage, the law says the children are illegitimate. So the children are in the mother's custody, she is the natural guardian, and she has a duty to support them. The father has a legal duty to support them and rights of access, but no automatic rights of custody or guardianship. The law may change soon to recognise Muslim and Hindu marriages.
Unmarried fathers
The Natural Fathers of Children Born out of Wedlock Act of 1998 gives natural unmarried fathers - including those whose marriages are not recognised by the state, for example Muslim and Hindu marriages - the statutory right to go to court to ask for access, custody or guardianship of their children. Under the new Act the interests of the children are seen as most important in deciding on custody or access to children. The practical steps that parents may have to take are as follows: - They must make an application to the High Court saying what it is they are wanting the court to decide on.
- After the application is filed, the Family Advocate must hold an enquiry and look at the merits of the case (consider each parent's claims).
- The Family Advocate then holds interviews with the parents and maybe other people involved, and has to look at the following factors before making a decision:
- the nature of the relationship between the parents
- what contributions the father has been making towards the birth and upkeep of the child
In terms of the Natural Fathers Act and the Adoption Matters Amendment Act, the father must be notified if the mother intends to put the child up for adoption. The mother does not have to do this if the pregnancy was a result of rape, incest or violence. The father must agree in writing that he is the father and make his identity and address available.
Adopted children
Adoption is a legal way for an adult single person or a married couple to become the legal parents of a child. Illegal adoption, for example paying to adopt a child, is a criminal offence. Adoption usually takes a long time. The adoption must go through the Children's Court. See PROBLEM 2: Adopting a child A child who is adopted must be under 18. A child can be adopted: - jointly by a husband and wife
- by a widow or widower or an unmarried or divorced person, with the consent of the Minister of Health and Welfare
- by a person who married the natural parent of the child
Proper consent (permission) is needed to make the adoption order legal. Under the Child Care Act and Adoption Matters Amendment Act of 1998, both natural parents must give their consent for adoption of their child. If the parents are not married, the Natural Fathers of Children Born out of Wedlock Act of 1998 says that the mother must first get the consent of the natural father if she wants to have the child adopted. However she only needs to do this if the pregnancy was not the result of violence, and if the father acknowledges in writing that he is the father and makes his identity and address available. See Unmarried fathers Case study Frasier vs Children's Court, Pretoria North Lawrie Frasier had a child with Adri Naudé. They were not married. By the time the baby was born the couple had separated. Ms Naudé arranged for the child to be adopted by people that the father did not know and without getting his consent to the adoption. She also didn't ask him whether he wanted to look after the child. In the case, Mr Frasier said he had rights as the father of the child even though they weren't married. But the Child Care Act said it was not necessary for a mother to get permission from the father of an illegitimate child. If they had been married, then she would have to get his consent. It was as a result of Mr Frasier taking up this case with the Constitutional Court that the Child Care Act was changed and the Natural Fathers of Children Born out of Wedlock Act passed. |
The law regards an adopted child exactly as if he or she is the legitimate natural child of the adoptive parents. So there are the same rights and duties, for example the duty of support. All rights and duties between the child and its natural parents end. See HIV, AIDS AND THE LAW, Adoption and fostering
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