Divorce proceedings can be stressful for the parties involved, but more so if one party is evasive to be reasonable and by deploying convoluted strategies to frustrate the ex-spouse or parent about how parental rights and responsibilities are to be exercised in respect of a minor child.
It is always advisable to reduce arrangements to writing and have the parties put pen to paper with the eventual outcome being the court confirming the arrangement. Further to make sure all areas vulnerable to disputes are covered, it is therefore of utmost importance that a parenting plan contains all the essentialia.
What does parental rights and responsibilities entail?
These are the rights and obligations parties may have in respect of a minor child. These rights include but are not limited to the following:
a) care for the child – care;
b) maintain contact with the child – contact;
c) act as the guardian of the child – Guardian; and
d) contribute to the maintenance of the child – maintenance.
Care, which is in some instances can refer to as primary care, referring to the parent which has custody of the child, although custody is a term no longer used in our law. Care entails the following but not limited to:
- Providing shelter to the child which promotes health, well-being and development;
- Financial support of the minor child;
- Guarding the child against maltreatment, abuse, neglect, degradation, discrimination.
Contact is the equivalent of the common-law right to access which entails maintaining a personal relationship with the child.
Guardianship entails an interested party or a parent being able to enter into contractual arrangements on behalf of a minor child and to deal with the assets/ property or property interests of the minor child.
Maintenance, the respective parents whether married or not have a legal duty to support the minor child within their respective means this includes but not limited to, contributions towards daily expenses, educational expenses, medical expenses and the emotional well-being of the minor child.
Where more than one person are holders of parental rights and responsibilities the parties are referred to as co-holders of parental rights and responsibilities.
When are parties co-holders of parental rights and responsibilities and similarly when are these rights and obligations assigned to the parties?
Ordinarily, In terms of Section 21(1) of the Children’s Act 39 of 2005 where a minor child is born of a marriage, both parents will be co-holders of parental rights and responsibilities.
However, if circumstances changes such as with divorce or unmarried couples these rights and/or obligations, although the parties may remain co-holders, the rights and obligations may vary or be limited to a certain extent.
For example, where a father would have had identical rights in terms of care alongside his wife in respect of his minor child, after divorce this right may be limited or reduced to reasonable contact or in some instances the husband and the wife we share such right which effectively limits both parties’ rights.
A biological mother automatically attain full parental rights and responsibilities in respect of minor children by virtue of giving birth to the child. Similarly, married biological fathers are co-holders of such rights provided that they are married to the mother of the child or were married to the mother at any time between the conception or birth of the child.
In conclusion
Disputes of this nature can crop up at any given time, whether it be during divorce proceedings or at any given time where a party abusing power. In these circumstance its always important to secure the advice of an expert to ensure that your rights and/ or obligation are adhered to in all areas pertaining to the child.
