Can your child or children simply be removed from your primary care and custody by your ex? The answer is no. The only way a child can be taken away from their primary parent is via Agreement or Court Order. Of course the child may be visited by the other parent and sleep-overs may take place, depending on the Parenting Plan, Settlement Agreement, Recommendations of the Family Advocate or Court Order.
However, when your ex threatens that he or she will be able to “take away” your primary care and custody, it is not a matter of simply taking the law into their own hands, based on their own opinion and effectively making themselves a Court of Law.
When it comes to Children, the Children’s Act is the main Act to consider. There are other Acts but this goes beyond the scope of this Article. For a direct link to the Children’s Act please see https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf
However, please note that it is advisable to consult your attorney before simply embarking on a course of action.
In terms of the Children’s Act, the standard applied is that is in the best interests of the child.
Factors that may be taken into account are:
- the nature of the relationship between the child and parents;
- the attitude of the parents toward the child;
- attitude of the parent or parents towards the exercise of parental responsibilities and rights in respect of that child;
- the likely effect on the child of changed circumstances such as separation from either parent or both parents
- the need for the child to remain in the care of his or her parent, family and to maintain a connection with his or her culture or tradition;
- the child’s age, maturity, stage of development;
- the need of the child to be brought up within a stable environment
Please note the above list is not meat to be exhaustive, merely a short summary. For adequate and thorough legal advice on the Children’s Act and your rights and responsibilities, consult with your attorney.
However, generally, primary custody is granted to one of the parents and the other parent will have reasonable visitation rights. The visitation rights that are generally recommended are as follows:
- If the child is under 6 months then usually the other parent will usually have the right to regular contact with their child either a few times a week for approximately 1 hour, or for approximately 3 hours on a Saturday or a Sunday.
2. When the child is approximately 1,5 years to 3 years old, then the other parent would usually have access for the whole day of either a Saturday or a Sunday, collecting the child in the morning and returning the child at the end of the afternoon. Usually, telephone or other (Skype etc) contact may also be allowed for approximately an hour or so a few days a week.
3. From approximately 3 to 5 years, then the other parent would usually be allowed to have contact with the child for an hour an evening for a few days a week as well as every second weekend (sometimes sleep-overs may be allowed, dependant on the circumstances of the matter).
4. From approximately 6 years, the child would usually have the same telephone/other contact for approximately 1 hour, for a few days a week as well as every second weekend and every second school holiday.
Please note that the above are just general visitation rights and each case will be different, depending on their unique circumstances and facts of the case.
Parents who were living together, but not married, may elect to utilize the offices of the Family Advocate for investigation or may agree to a suitable professional such as a social worker to provide Recommendations as to care and contact. The Children’s Court may also be approached, however, the option you elect to follow may vary dependant on your specific circumstances. Contact your attorney to thoroughly discuss your options.
Parents who are in the process of divorce would either have their Settlement Agreement endorsed by the Family Advocate or the matter will be referred for investigation by the Family Advocate. For more information on Settlement Agreements in Unopposed Divorces please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-unopposed/
Alternatively, the parties may, in certain circumstances, involve experts, in addition to the Family Advocate, such as social workers to provide testimony and reports to the Court for determination on the aspect of care and access of the minor children. For more information on Opposed Divorces please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/
Above, much reference has been made to the Family Advocate. In order to better understand the role of the Family Advocate please see our blog at https://www.hamelattorneys.co.za/family-advocate-who-are-they-and-what-do-they-do/
Please note that the above is just in general and your matter, rights and the best interests of your children may vary dependant on your unique circumstances.
It also cannot be stressed more that the office of the Family Advocate does not deal with maintenance issues. You should seriously consider discussing maintenance queries with your attorney as to your specific maintenance needs for your children.
Contact us today to set up your consultation at https://www.hamelattorneys.co.za/contact/ or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.
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