Care, Contact and Guardianship

Many people with children will understand the term “custody”. In South African child law, the term “custody” is no longer referred to and has been replaced with the terms “care” and “guardianship.”

The last term to be discussed below is that of “contact” which is also referred to South African child law and together these three terms form part of the parental rights and responsibilities of parents of minor children. Lastly, the one largest issue legal practitioners may be tasked with and divorced parents may find themselves in.

Care

In terms of Section 1 of the Children’s Act, 38 of 2005, “care” comprises a suitable place to live, living conditions conducive to a child’s health and necessary financial support. Safeguarding the wellbeing of a child, protecting a child from maltreatment, protection of the child’s rights, guidance and protection of a child’s education and religious beliefs, guiding a child’s behaviour, maintaining a relationship, accommodating any special needs and ensuring the best interests of a child.

Guardianship

In terms of Section 18 of the Act, guardianship is contemplated in a much less clear sense, however generally, guardianship involves consent regarding all the decision making surrounding a child, such as schooling, passports, adoption, and marriage, to name a few.

Contact

In terms of Section 1 of the Act, contact involves mainly, maintaining a relationship with a child through visitation and communication.

The Issue

Frequently, when parties get a divorce, one of the parties will be quick to decide that they would like “custody” of the children. The issue arises since custody, no longer forms part of our law and as a result, such a parent will need to consider the above descriptions regarding exactly what they would like to achieve.

In doing so however, it is pertinent to remember that a court will not lightly consider taking away a parent’s rights and responsibilities over a minor child, and resultantly, it may not be as easy to achieve wishes of primary care or guardianship over a minor child or children.

Conclusion

If you are considering primary care or guardianship and are not sure of exactly how these terms operate, contact our offices to set up an appointment so we can assist you in dealing with your matter.