<--- Back to contents

Chapter 8 - Family Law and Violence against Women

Custody, guardianship and support of children

Custody, guardianship and support of children

Both parents have custody and guardianship of their children, and a legal duty to support them.

Custody or care

Custody or care 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Note: The Guardianship Act (No 192 of 1993)  is  repealed by the Children’s Act.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.

Problem 4: Getting maintenance through the Maintenance Court.

State child support grants

Apply to the Department of Social Development for these grants. The parents will have to go through a means test to qualify for Child Support or Care Dependency Grants.

Child Support Grants.
Foster Care Grants.
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 0-17 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.

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. The Act no longer makes a distinction between illegitimate and legitimate children.

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.

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.

General parental responsibilities and rights.

Parental responsibilities and rights of unmarried fathers.

Children of Muslim or Hindu marriages

If a couple was married by religious rites only (i.e by an Imam in the Muslim religion, or a priest in the Hindu religion),  they used to be considered to be illegimate. However, under the Children’s Act it removed the status of deeming children illegitimate.Both parents have 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.

General parental responsibilities and rights.

Parental responsibilities and rights of unmarried fathers.

Adoption of children

Note: The Children’s Act deals with adoption as well as inter-country adoptions. The sections in the Act on adoption came into force on 1 April 2010.
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
• by the foster parent of the child

Consent to adoption

Proper consent (permission) is needed to make an adoption order legal. Consent is written permission that is given to people wanting to adopt a child. Consent can be given by the parents, the guardian of the child or the child. A child older than 10 years can consent to their own adoption.

Laws on adoption

Adoption laws in South Africa are outlined by the Child Care Act of 1983, which require social workers and adoption agencies to "give due consideration" to language, religion and culture when matching prospective parents with children.

Consent to adopt

A child whose parents are both dead is available for adoption. Where the parents are alive, they must both consent to the adoption.

Child born out of marriage

In the case of the child born out of marriage, consent must be given by both the mother and the natural (birth) father provided that he has acknowledged himself in writing to be the father of the child and has made his identity known on the child's birth certificate. Where only one parent has given consent the commissioner will issue a notice to be served on the natural father within 14 days informing him or her of the consent that has been given and giving him or her the opportunity to also give or withhold consent.

The children’s court does not need to issue a notice of an intended adoption of a child born out of marriage if the commissioner is satisfied that the natural father:

• deserted the child and/or no one knows where he is
• did not acknowledge that he was the father of the child or has failed without good reason to carry out his parental duties with regard to the child
• was in an incestuous relationships with the mother of the child and the child was conceived as a result of this
• was convicted of the crime of rape or assault of the mother
• was, after an inquiry by the children's court following an allegation by the mother of the child, found on a balance of probabilities, to have raped or assaulted the mother.

Who can adopt a child?

• A married couple can jointly adopt a child.
• Partners in a life-partnership (including same-sex partners) can jointly adopt a child.
• A person who has married the natural parent of a child can adopt the child (adoption of a step-child).
• A single person (a widow or widower or an unmarried or divorced person) can adopt a child as a single person if they get the consent of the Minister.

When is consent not required?

• The parents of the child have died and no guardian has been appointed for the child.
• The parent:
• is not competent to give consent as a result of mental illness
• has deserted the child and it is not known where the child is
• has physically, emotionally or sexually assaulted, ill-treated or abused the child or allowed assaults or ill-treatement
• has caused or assisted in the seduction, abduction or sexual exploitation of the child, or has caused or helped the child to commit immoral acts
• withholds consent unreasonably
• of a child born out of marriage has failed to acknowledge himself as the father of the child or, for no good reason, did not fulfill parental duties with regard to the child
• is the father of a child who was born out of marriage and was conceived in an incestuous relationship with the child's mother
• is the father of a child who was born out of marriage, and:
• was convicted of the crime of rape or assault of the mother of the child
• after an enquiry by the children's court following an allegation by the mother of the child, found (on a balance of probabilities) to have raped or assaulted the mother of the child: Provided that such a finding shall not constitute a conviction for the crime of rape or assault
• of a child who was born out of marriage has failed to respond, within 14 days

Note: A parent of the child who has consented to the child’s adoption has the right to withdraw consent within 60 days of giving the consent.

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.

Problem 3: Adopting a child.