The acquisition and termination of custody

CASE STUDY:

“Hi, my name is Wendy. The biological father of my children has had no contact nor paid maintenance for the children since our divorce 5 years ago. I have since re-married and my current husband is a father figure to my children. Is there an alternative manner to sharing custody of the children with my husband or is adoption the only option to make him their legal guardian?”

What are Parental Responsibilities and Rights?

The Children’s Act 38 of 2005 defines parental responsibilities and rights as the responsibility and right to:

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

A parent or guardian of a minor child may have full or specific responsibilities and rights which may varied by agreement or court order. The Children’s Act provides that the biological mother of a minor child holds full parental responsibilities and rights towards the minor child while the position for biological fathers is distinguished between rights of married fathers and unmarried fathers.

Acquisition of Parental Responsibilities and Rights

A person interested in the care and well-being of a minor child may acquire parental responsibilities and rights by agreement or court order.

Section 22 of the Act provides for parental responsibilities and rights agreements, which allow the mother or any holder of parental responsibilities and rights towards a child, to enter into an agreement in which she consents to the granting of rights and responsibilities to either the biological father of the child or any other person having an interest in the care, well-being and development of the minor child.

The agreement envisaged by section 22 must be in a prescribed format and only takes effect once it has been registered with the Family Advocate or made an order of the High court having the requisite jurisdiction.

The Act further makes provision for a person interested in the care, well-being and development of a minor child to bring an application before the High Court for the assignment of contact and care of a minor child or guardianship of a minor child.

Termination of Parental Responsibilities and Rights

Section 28 of the Children’s Act 38 of 2005, provides for the termination, extension, suspension or restriction of parental responsibilities and rights. This provision caters for an application to be brought in the High Court where a parent or holder of parental responsibilities and rights would request the court to grant an order either terminating or suspending the parental responsibilities and rights of the co-holder of parental responsibilities and rights.

The effect of an application for termination of parental responsibilities and rights will either wholly or partially deprive a person of their parental responsibilities and rights regarding a child meaning that person will no longer have any obligations to care for or maintain the child nor have any right to exercise contact with the child.

Before granting an application for the termination of parental responsibilities and rights, the court will take the following into consideration:

• The best interests of the child
• The relationship between the child and the person whose rights are being challenged
• The extent of commitment that the person has shown towards the child
• Any other fact that should in the opinion of the court be taken into account.

On the other hand, a holder of parental responsibilities and rights may voluntarily give up custody / parental responsibilities and rights either partially or in totality in favour of a co-holder of such responsibilities and rights. Similarly, to Section 22 agreements, parental responsibilities and rights can only be terminated by an order of the High court.

Contact us for more information on how we can assist you with acquisitions and terminations of parental responsibilities and rights