The issues of child custody, access and guardianship play an important part in divorce of families with one or more children.
Child Custody and Guardianship
Guardianship is an adults’ right and responsibility to:
- Manage a child’s interests
- Manage any assets or financial aspects of the child’s life
- Assist the child in legal or contractual situations
- Give consent to the child’s medical treatment, marriage or adoption
- Give consent for the child to travel out of South Africa
South African courts normally grants guardianship to both parents as part of the divorce settlement. In certain very specific circumstances, the court may grant sole guardianship to one parent or someone who is not the biological parent.
The High Court is legally the upper guardian of all South African children. If a guardian is not fulfilling their duties the High Court can be approached to intervene and has the power to terminate a guardianship and transfer care of the child to another person or parent.
Custody or Care
Custody or care of a child means physical control over the child and providing supervision of their daily life including providing them with:
- Food and support
- Day to day needs
- A home
In a marriage parents share custody. When they separate or divorce custody is normally granted to a single parent. The opinion of the child is taken into account where they display the emotional and intellectual maturity to have a well-informed view.
Access to a child refers to the non-custodial parent’s right and privilege to see and spend time with the child.
Divorce agreements often grant the non-custodial parent reasonable access, but it is often best to stipulate clearly what is regarded as reasonable in the specific circumstances.
The parent who has custody may not impose unreasonable conditions or restrictions on access, but can make a final decision in cases where the parents disagree.