Parental Rights

And Responsibilities

 

Family matters can be very difficult and emotional – especially when there are children involved. We advise all parents should know their rights and responsibilities. “It is a common misconception amongst divorced and single parents that if one parent does not contribute towards the maintenance of the child that parent cannot have contact and access with the child. This is not true. In fact, contact and access and monetary issues are completely separate – one is a right and the other a responsibility and obligation.

Know Your Rights & Responsibilities

Parents should know their rights and be willing to fight for them. “So often the emotional and financial cost of litigation wears down a parent and they give up the fight.” People still incorrectly refer to themselves as having ‘custody’ of a child. “It is no longer referred to as custody, but rather that one parent has primary residence and care of the child and the other has access and contact rights.’’ According to Section 18 (2) of the Children’s Act No 38 of 2005, parents have both the right and the responsibility to take care of, stay in contact with, act as guardian to and contribute towards the maintenance of their child. This not only includes providing a suitable place for him or her to live as well as the necessary financial support and education, but it also deals with safeguarding and promoting his or her well-being and protecting them from abuse or any physical, emotional and moral harm. In terms of contact, parents need to maintain a personal relationship with their child, even if they live elsewhere.

Know Your Obligations

When it comes to the legal obligation to pay maintenance for a child, the first step is to determine the child’s needs. “The duty to support 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.” The following factors are taken into account when determining a parent’s maintenance contribution: that supporting the child is both parent’s obligation; that the parents’ respective shares are according to their respective means; and that the duty exists, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage. This means that both parents have to pay for their child, in accordance with their respective means and abilities to pay. How much maintenance is paid is calculated on a ‘pro-rata’ basis, which takes into account how much you earn and how much is needed to maintain the child. People don’t realise that certain items such as cars, gym contracts and even DSTV contracts are considered luxuries when assessing expenses at a maintenance enquiry, one’s bank statements will be scrutinized and should it come to light that one party owns assets it will be requested that they sell them in order to maintain the children.

Know The Difference

“These two topics are independent of one another and cannot be offset. Contact and access is not a pay-as-you-go system. A parent cannot withhold paying maintenance for their children because he or she is not able to spend time or is prevented from spending time with the children. The opposite also applies – one cannot prevent a parent from spending time or exercising contact with the children if maintenance is not being paid.”

Remember To Always Put The Child First

Whatever the case, parents need to be mindful of the constitutional provision that a child’s best interests are of paramount importance in every matter concerning the child. The case of, RICHIES V RICHIES 1981(1) PH B4, “the parent who deprives a child of opportunities to experience the affection of its other parent and breaks down the image of that other parent in the eyes of the child, is a selfish parent; robbing the child of what should be its heritage in order to salve wounds. And regrettably often parents wounded by conflict lose their objectivity and use, as very effective clubs with which they beat the foe, the objects both profess to love more than life itself: their children, who suffer further trauma in the process.”