Are you expected to pay maintenance if prevented from seeing your child(ren)?
“I pay maintenance for my child religiously every month because I know the separation is not their fault. They deserve to be taken care of and their needs are my responsibility. What I cannot handle though is my ex preventing me from seeing my child despite me paying maintenance. Should I continue paying the maintenance even though I am not being allowed to see my child? Please help…” This is often a scenario which our offices stumble upon. It does appear to be rather unfair to have to pay maintenance but then not be allowed to see your child. Many parents state that they stop paying maintenance because they are not being allowed to see their child(ren) – Is this allowed though? This article will serve to answer this question and to set the record straight.
Is child maintenance and visitation rights linked?
Child maintenance and visitation rights are most certainly not linked. One is not allowed to stop paying child maintenance on the mere basis that you are not being allowed to see your child(ren). The Maintenance Act 99 of 1998, and specifically at section 15(1) and (2) provides that:
“(1) Without derogating from the law relating to the liability of persons to support children who are unable to support themselves, a maintenance order for the maintenance of a child is directed at the enforcement of the common law duty of the child’s parents to support that child, as a duty in question exists at the time of the issue of maintenance order and is expected to continue;
(2) The duty extends to such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.”
This in essence means that your responsibility to support your child is separate from your right to see and have contact with your child. Not paying maintenance for your child is a violation of the law and will most certainly not make you look good in the eyes of the court.
Is my ex in violation of the law if they do not allow me to see my child even though I have stopped paying maintenance?
Put simply, both you and your ex in violation of the law. You are in violation of the law as the Maintenance Act as well as the Children’s Act 38 of 2005, specifically places a duty on you to support your child. Your ex, on the other hand, is in violation of the law if they do not allow you to see your child. You are entitled to see your child even if you do not pay maintenance and your child is entitled to maintenance even if you are not seeing them.
What can I do if my ex is preventing me from seeing my child even though I am paying maintenance?
If you are not being allowed to see your child and there is a court order in place, the best option would be for you to approach the courts for relief. Section 35 of the Children’s Act provides that:
“(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22 (4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
(2)(a) A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change; and(b) A person who fails to comply with paragraph (a) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.”
What does this all mean? Well, it simply means that you cannot be refused contact with your child on the basis that you are not paying maintenance. Unless your ex has good cause to refuse you contact to your child ie: you are arriving drunk to see your child and in that event they would be justified in refusing you contact; but not paying maintenance is most certainly not a valid reason.
Should your ex be refusing you contact to see your children on the basis that you are not paying maintenance, approach the courts for relief so that they are able to issue a warrant. The courts will then most likely hold the warrant over and warn your ex of their conduct. Should their conduct continue, they will then arrest your ex.
In the event where there is no court order in place between you and your ex, approach an attorney to have a Parenting Plan drawn up that will regulate the contact and visitation rights between you and your child.
Vermeulen Attorneys has ample experience in both maintenance and contact matters and will be happy to assist any parent in this regard.