Maintenance and custody (now care and access as per the latest definitions of the Children’s Act) are issues that affect many parents. Many people think that because they don’t want to see their children, or cannot see their children, that they then have no need to pay maintenance. This is not so. A child has the right to maintenance from both parents, regardless of in whose custody they are and whether or not that parent sees their child or children.
This Article will deal exclusively with the right to see your children and the duty to pay maintenance. For other questions such as
- What are my rights if we were never married? Please see our blog at https://www.hamelattorneys.co.za/livig-together-co-habitation-in-south-africa/
- What if my husband or wife refuses divorce? Please see our blog at https://www.hamelattorneys.co.za/spouse-refuses-to-divorce-can-i-make-him-her/
- What if we have already agreed to maintenance and custody? Please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-unopposed/
- What if we can’t agree on maintenance and custody? Please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/
Maintenance and custody can be a sore spot and can create uncertainty if one has not obtained adequate legal advice.
It is incorrect to think that maintenance and custody are the same thing. They are seperate and are usually dealt with in separate courts ie the Maintenance Court and the Children’s Court. In the case of a divorce other routes may be followed. This should be explained to you at consultation with your attorney. For more information on what to expect during your first consultation, kindly see our blog at https://www.hamelattorneys.co.za/divorce-how-do-i-know-i-can-trust-my-attorney/
The non-primary care giver of the child is obliged to contribute towards the maintenance of their child regardless whether he or she sees the child, wants to see the child or can only occasionally see the child. Maintenance expectations may be explained to you in detail at consultation with your attorney, after assessment of your unique circumstances such as income, the reasonable costs of the child and the income of the other parent.
This however does not mean that should the other parent not be able to pay maintenance that he or she may be deprived of visitation rights. Visitation rights and/or Custody is a separate issue from maintenance. It does not follow simply because a parent cannot afford maintenance that it is in the child’s best interest not to see that parent. The child’s best interests are paramount when determining visitation and/or custody. It is highly advisable that you thoroughly discuss the unique circumstances of your case prior to embarking on any course of action.
On the other hand, payment of maintenance does not entitle the non-primary care giver of the child to demand visitation unreasonably, haphazardly or more than what is in the child’s best interests. It is highly advisable that you thoroughly discuss the unique circumstances of your case prior to embarking on any course of action.
In circumstances where the parents are living together at the time of birth of their child, the father may have rights in terms of the Children’s Act. In these circumstances, should the parties break-up subsequently, be unable to agree on a Parenting Plan, the father may apply to Court to have access to his child. Please note that access does not necessarily mean custody: it simply means the right to visit/contact his child. In certain circumstances, such as should the parent in whose custody the child resides be unfit or abuse the child, the other parent may apply for primary custody via the Courts and following the correct legal routes. It is imperative that you consult with your attorney in order to obtain adequate legal advice prior to simply entering into a Parenting Plan or approaching the Courts.
For access to the Children’s Act please visit https://www.gov.za/documents/childrens-act
For more information on general visitation rights, please see our blog at https://www.hamelattorneys.co.za/cant-agree-on-custody-what-now/
It is highly recommended that you have an attorney go through the Act with you and advise you on the implications thereof as well as your rights and duties before commencing on a course of action.
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.