Your right to parent and how the law helps

Protecting your Right to Parent

How the law helps protect your parenting rights

Every parent wants to make sure that their children are safe, nurtured and secure. Even if you are unmarried or divorced, the law is on your side when it comes to your rights as a parent. Let’s take a closer look at how the law helps protect your parenting rights

Chantel Cronje - Head of Legal, Risk, and Compliance

29 May 2022 | 3 minute read

According to the Children’s Act of South Africa, even after a divorce, the biological parent of a child still has full parental rights to their children, unless there is a court order that was granted against them. If you need legal assistance or representation, click here and fill out the form and our legal team will call you back.

The Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards his/her child:

To care for a child;
To keep contact with a child;
To act as guardian of a child;
And to contribute to the maintenance of a child.

Both parents of a child have equal rights and responsibilities, but when they are not living together, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents.

Caring

This is the right to have a child live primarily with one partner. It also gives the parent the right to supervise the daily life of a child, making sure that their needs are taken care.

Contact

This means having the right to maintain a personal relationship with your child. Practically, this means you must be allowed to see, spend time and communicate with your child.

Guardianship

The right to guardianship means that you have the right to take care of your children’s interests when it comes to legal and other processes. This includes safeguarding your child’s property interests and representing your child in legal matters. You also have to agree and give official consent in situations such as if your child (under the age of 18) gets married, adopted, removed from South Africa or applies for a passport.

Maintenance

Both parents have the responsibility to contribute to the maintenance of the child.
A child’s reasonable needs to have a proper upbringing must be considered and includes the provision of food, clothing, accommodation, medical care and education.
The responsibility to maintain a child does not end when a child reaches a certain age. The responsibility will continue until s/he becomes self-supporting (being able to take care of him/herself).
Both parents have the responsibility to contribute to the maintenance of their child/children.

A parent or any other person who has an interest in the wellbeing of a child can apply to the Children’s Court, High Court or the Divorce Court during divorce proceedings for an order granting him/her with rights and responsibilities.

Accessing these rights

If the child’s other parent has tried to deny you any of these parental rights – and there is no court order ruling that you are not allowed to access your children – then the law can help.

According to the Children’s Act, the unmarried or divorced biological parent has full parental rights to the child, if certain conditions have been met:

If you have been legally identified as the parent of the child. This means you would be listed on their birth certificate or would have taken a medical test to prove your biological connection to the child:
If you have helped or tried to help towards the upbringing of your child for a reasonable time.
If you have helped or tried to help towards the maintenance expense of your child for a reasonable time.

If the other parent has denied you access to your child, you can apply for the right to care and have contact with them at the Children’s Court.

If you have been denied guardianship rights, you need to apply at the High Court.

If you want both care/contact and guardianship rights, then again the High Court is the authority that can help.

A helping hand for parents

Parents, if you struggle to pay for your child’s needs, such as school fees, you can apply for a child social grant.

The grant is a set amount of money that the government will give you each month to help raise your child.

It applies to children under the age of 18.

To qualify for the grant, a single parent or caregiver must earn R5 100 or less per month. You can apply for a grant at the nearest South African Social Security Agency (SASSA) office, for free.

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