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Chapter 8 - Family Law and Violence against Women

Custody, guardianship and support of children

Parents 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 are married and 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 mother and father have joint guardianship of the children.

Guardianship

In terms of the Children’s Act a person who acts as a guardian must:

- administer and safeguard the child’s property and property interests;
- assist or represent the child in administrative, contractual and other legal matters; or
- give or refuse any consent required by law in respect of the child, including—

- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from the Republic;
- consent to the child’s application for a passport; and
- consent to a sale of any immovable property of the child.

The parents are usually joint guardians and are called the 'natural guardians'. A natural guardian has a duty to support her or his children. If for some reason the natural guardian cannot carry out his or her duties, the court appoints a 'legal guardian' for the children.

Note: The Guardianship Act (No 192 of 1993) will be repealed by the Children’s Act.

Duty to support

Both parents have a legal duty to support their children. Where children are not given reasonable care, then the court may remove the child from the parent’s care in terms of child care provisions.

The duty of parents to support their children ends when the children become independent, for example when they marry, or when they become self-supporting.

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 4: Getting maintenance through the Maintenance Court.

State child support grants

Apply to the Department of Social Services for these grants. The parents 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 0-14 years old.
  

• 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.

• Care-dependency grant: You can apply for this if you support a child who is severely disabled and needs special care.

Parental responsibilities and rights

When people become parents they have legal responsibilities and rights in respect of their children. Parents must give their children enough support to live at the same standard of living as the parents. This duty continues until the children are self-supporting. This support includes food, clothing, housing, medical and dental expenses, and education. Children are minors until they reach the age of 18.

These responsibilities and rights came into force on the 1st July 2007,

General parental responsibilities and rights

The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—

- to care for the child;
- to maintain contact with the child;
- to act as guardian of the child; and
- to contribute to the maintenance of the child.

Parental responsibilities and rights of mothers
The biological mother (in other words, the person who gave birth to the child) of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

Parental responsibilities and rights of married fathers
The biological father (in other words, the physical father of the child) of a child has full parental responsibilities and rights in respect of the child—

- if he is married to the child’s mother; or
- if he was married to the child’s mother at the time when the child was conceived (in other words, when the mother fell pregnant) or at the time of the child’s birth; or any time between these events.

Parental responsibilities and rights of unmarried fathers

Unmarried fathers have full parental responsibilities and rights in respect of the child—

- if at the time of the child’s birth, he is living with the mother in a permanent relationship; or
- even if he is not living with the mother or has never lived with her, he —

- is identified as the child’s father or pays damages in terms of customary law;
- contributes or has tried to contribute to the child’s upbringing for a reasonable period; and
- contributes or has tried to contribute towards the child’s maintenance for a reasonable period.

However, this does not affect the duty of a father to contribute towards the maintenance of the child.

If there is a dispute between the unmarried father and the mother of a child regarding any of these conditions, the matter must be referred for mediation to a family advocate, social worker, social service professional or any other qualified person.

Any party to the mediation can ask a court to review the outcome of the mediation.

This section applies regardless of whether the child was born before or after the Act was passed.

See Illegitimate children

The Natural Fathers of Children Born out of Wedlock Act (No 86 of 1997) which gave unmarried fathers the right to go to court to ask for access, custody or guardianship of their children has been repealed by the Children’s Act.

Parental responsibilities and rights agreements

The mother of a child or any other person who has parental responsibilities and rights in respect of a child can enter into an agreement with –

- the biological father of a child who for some reason does not have parental responsibilities and rights in respect of the child, or
- any other person who has an interest in the care, well-being and development of the child.

A parental responsibilities and rights agreement must be registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court.

Before registering a parental responsibilities and rights agreement or making it an order of court, the family advocate or the court must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.

Legitimate children and guardianship

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, both the parents are the child's natural guardians.

See Guardianship

Children of African customary unions

If a couple was 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. The Children’s Act gives parental responsibilities and rights to all fathers whether they are married or not if certain specified conditions are present.

See General parental responsibilities and rights.

See Parental responsibilities and rights of unmarried fathers.

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 unmarried 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.

In terms of the Children’s Act, unmarried fathers automatically have parental responsibilities and rights if certain specified conditions are present.

See General parental responsibilities and rights

See Parental responsibilities and rights of unmarried fathers

Children of Muslim or Hindu marriages

If a couple was 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. In terms of the Children’s Act, whether fathers are regarded in law as married or unmarried, they automatically have parental responsibilities and rights if certain specified conditions are present.

See General parental responsibilities and rights

See Parental responsibilities and rights of unmarried fathers

Adopted children

Note: The Children’s Act deals with adoption as well as inter-country adoptions. The sections in the Act on adoption have however not yet come into force. This means that the provisions of the Child Care Act and all other laws relating to adoption still apply.

Adoption is a legal way for an adult single person or a married couple to become the legal parents of a child. The Constitutional Court has decided in Du Toit and Another v Minister of Welfare and Others 2003 (2) SA 198 (CC) that the Child Care Act was unconstitutional in not providing for partners in same-sex life partnerships to adopt children jointly.

Adoption usually takes a long time. Parties must apply to the Children’s Court for an order of adoption under the Child Care Act.

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
  
• by a person who married the natural parent of the child
  
• by the natural father of a child born out of wedlock
  
• by a couple in a same sex life partnership

Consent to adoption

Proper consent (permission) is needed to make an adoption order legal. Under the Child Care Act and Adoption Matters Amendment Act (No 56 of 1998), both natural parents must give their consent for adoption of their child. If the parents are not married, the Adoption Matters Amendment Act says that the mother must first get the consent of the natural father if she wants to have the child adopted. The mother must give the natural father reasonable written notice of the intended adoption. Where no notice is given, the Court cannot make an order of adoption.

The only circumstances where notice need not be given to the natural father are where:
- The natural father cannot be identified; or
- After reasonable efforts, the natural father cannot be found; or
- The child was born out of a relationship of incest or as a result of rape.

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.

Illegal adoption, for example paying to adopt a child, is a criminal offence.

See Problem 3: Adopting a child.