Parental Responsibilities and Rights Agreement

All you need to know about a Parental Responsibilities and Rights Agreement in respect of a child.

“My name is John. My wife and I got married in 2010. She has one minor child (*Jared* – not his real name for purposes of protecting his identity) born from her previous marriage. Jared and I get along so well. Jared sees me as his Dad, I take care of all Jared’s needs, Jared has shown substantial growth and maturity since I have played an active fatherly role in his life. I also teach him various morals and values which are helping to develop him into a real gentleman! Is there any way I could legally acquire Responsibilities and Rights over Jared? Please help! I would love to share in the Rights of Jared with my wife. My wife is also happy for me to acquire such Rights in respect of Jared, even though I am not his biological father.”

What does the word “acquisition” mean?

“Acquisition” means to obtain something, in this case, to obtain Parental Responsibilities and Rights.

What are Parental Responsibilities and Rights?

In terms of Section 1 of the Children’s Act, 38 of 2005, these are Responsibilities and Rights relating to a child, which mean the Responsibilities and Rights to:

1. Care for a child;
2. Maintain contact with a child;
3. Act as guardian of a child;
4. Contribute to the maintenance of a child;

Any person who acts as a guardian of a child must:

1. Administer and safeguard the child’s property and property interests;
2. Assist or represent the child in administrative, contractual and other legal matters;
3. 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 the alienation or encumbrance of any immovable property of the child.

What is a Parental Responsibilities and Rights Agreement?

This is an Agreement whereby a mother of a child or any other person who has Parental Responsibilities and Rights in respect of a child enters into an agreement providing and consenting to the acquisition of such Parental Responsibilities and Rights by:

1. The biological father of a child who does not have Parental Responsibilities and Rights in respect of the child; or
2. Any other person having an interest in the care, well-being and development of the child (relevant for purposes of this article).

When does a Parental Responsibilities and Rights Agreement take effect?

Such agreement, in terms of Section 4(a) and (b) of the Children’s Act, 38 of 2005, only takes effect if:

1. It is registered with the Family Advocate; or
2. If it is made an order of the High Court, a divorce court in a divorce matter, or even the children’s court on application by the parties to the proceedings.

The Form that needs to be filled out at court is a Form 04 for a Parental Responsibilities and Rights Agreement.

What will the Court consider before registering a Parental Responsibilities and Rights Agreement?

The Court or the Office of the Family Advocate, before registering such agreement or before making it an order of the court, will have to fully satisfy themselves that such agreement is in the best interests of the child involved (in this case, such an agreement must be in Jared’s best interests).

Termination and/or amendment of a Parental Responsibilities and Rights Agreement?

In terms of section 22(6)(a) and (b) of the Children’s Act 38 of 2005, a Parental Responsibilities and Rights Agreement which has been registered with the Family Advocate OR which was made an order of Court, may be amended or terminated by the Family Advocate on application:

1. By a person having Parental Responsibilities and Rights in respect of a child;
2. By the child, acting with the leave of the Court; or
3. In the child’s interest by any other person, acting with the leave of the Court.

Conclusion

The best way for John, in the event where his wife is happy for him to acquire Parental Responsibilities and Rights in respect of Jared, to acquire such Parental Responsibilities and Rights over Jared would be:

1. To enter into a Parental Responsibilities and Rights Agreement with his wife who already has such Rights in respect of Jared.
2. For John and his wife to register such agreement, once drafted, with the Family Advocate OR to apply to the High Court to make such an agreement an order of Court.

It is advisable that John consult an attorney in order to draft such agreement as an agreement of this nature can be complex, and should you not set out an adequate case that such agreement is in the best interests of the child involved, the Family Advocate will not register it and nor will the court grant it.

Need an agreement of this nature drafted? Contact us. We would be happy to assist!