​PARENTAL RIGHTS AND RESPONSIBILITIES DURING DIVORCE PROCEEDINGS

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

1. To take care of a minor child;
2. to keep contact with a minor child;
3. to act as guardian of a minor child; and
4. to contribute to the maintenance of a minor child.

Both parents of a child have equal rights and responsibilities, but when they are no longer residing in the same house, specific rights and responsibilities may be regulated, either by the parties agreeing thereto or by way of a court order.
It is always the best solution for parties going through a divorce to discuss and settle the issue regarding care and contact, as well as rights and responsibilities as soon as possible.  This keeps some form of normality and gives reassurance to the children that both parents are still a part of their lives.  An interim order may be granted by the court during divorce proceedings regulating care and contact while the main divorce action is still pending.
Care means that one party is the primary caregiver of the minor children.  This is the same as custody. Contact means the other party’s right to access to the minor children.  Where the care and contact of the minor children cannot be settled upon, or to determine if it is in the best interest of the minor children, the Office of the Family Advocate has made the following recommendations regarding contact:

1. If the child is 0 to 6 months old, it is proposed that the periods of contact is regular.  If it is weekly, the recommended time is at least 3 hours per visit and shorter, more frequent periods of contact is suggested, for instance 2 to 3 times per week.  Overnight and vacation time is not recommended.

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1. If the child is 7 to 19 months old, the same recommended contact is suggested as in when the child is 0 to 6 months old.  Overnight is not recommended and vacation time is not really recommended.

 

1. If the child is 18 to 36 months old, weekly contact as well as a portion of one or both days over a weekend is recommended.  Long weekend visits are not recommended, but is acceptable for 3 year olds.  Overnight stays are acceptable for 3 year olds.  Vacation time is possible, however only one week or less.

 

1. If the child is 3 to 5 years old, predictable contact is important.  Routine is important.  Weekly time if it is possible must be spent with the child.  Full weekends or 2 other days and nights are encouraged at this stage. Vacation time is recommended for 1 week where the child is a bit younger and up to 2 weeks if the child is older.

 

1. If the child is 6 to 12 years, the same contact as in point 4 is recommended.  An additional overnight stay is acceptable.  Vacation time of 2 weeks or longer is possible and to exchange the primary residence during the holidays with reversed time sharing is recommended.

 

1. If the child is 13 years or older, the focus should be on the needs of the teenager, as well as the wishes of the teenager.  However parental responsibility and supervision must be maintained.  Overnight stays are optional and vacation time is recommended.  The schedules and activities of the child must be borne in mind when deciding on the arrangements. 

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Contact over the Holidays
Short school holidays, depending on the child’s age and maturity, usually alternate yearly. Long school holidays are usually split in half and will alternate yearly. If the child is not able to cope with long periods away from one parent, the holiday contact time should be shortened accordingly by agreement between parties.
​In addition, the agreement or court order can state that the child has the right to spend Mother’s Day with the mother and Father’s Day with the father. The minor child also has the right to spend an agreed amount of time with the mother and father on their respective birthdays should the child not be in their primary care at the time. The agreement or order should set out how the parent of alternate residence will exercise contact on the minor child’s birthday.
 
Other contact
The agreement or court order will also normally contain a clause stating that the minor child, depending on their age and maturity, will be entitled to telephonic or video call access to the other parent when they are not with the one parent at reasonable times. Each parent is obliged to provide the other with the relevant contact details.
 
School Reports and Other Rights
The agreement must regulate the parents’ involvement in the minor child’s schooling. Both parents must have full access to the school and teachers and should remain involved and support the minor child’s progress at school and participation in extra-murals. The agreement or order usually contains a directive to inform the child’s school that the parents are co-holders of parental rights and therefore jointly involved in all educational issues concerning the child.  Each parent will be entitled to discuss issues relating to the child directly with the teacher concerned, as well as receive school reports, assessments and notices, and attend all school-related events and extra-mural activities.
 
Joint decision making
Parents have to make joint decisions regarding certain issues. These will be set out in the agreement or order and usually include major decisions about contact with the child, school and tertiary education, medical and mental health issues and any decisions that are likely to significantly change the child’s living conditions or have a negative effect on his or her overall well-being.  Parents need to be accommodating and should support one another in sharing the responsibility of making major decisions concerning their children.
 
Parents should communicate
Communication between parents is a vital aspect that should be covered in an agreement or order, as it will assist parents in meeting the minor child’s needs, prevent the minor child from a sense of worry and fear of abandonment and protect the minor child from continued parental conflict, feelings of unhappiness, and unrealistic expectations about the relationship between his or her parents.
As more than one person may hold parental responsibilities and rights in respect of the same child, each one may make decisions without the consent of the other party.  This will be in circumstances where the minor child’s primary residence is with one parent, who is then entitled to make decisions about the day-to-day care and needs of the child.
 
Refusal to allow the other parent to exercise parental responsibilities and rights
The Children’s Act contains specific provisions that aim to prevent one parent from preventing the other parent in the exercise of rights and responsibilities. A parent should never attempt to discourage a child from contact with the other parent or alienate a child from the other parent. Any parent who refuses to allow the other parent to exercise his or her rights and responsibilities contrary to a court order or properly concluded parenting plan agreement is guilty of an offence, and will be liable on conviction to a fine or sentenced to imprisonment for a period not exceeding one year. In addition, the parent with whom the child lives must notify the other parent in writing of any change to his or her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.
Once these issues can be agreed upon or settled, it can be made an interim order of court while the main divorce action is still pending.  Ultimately, the best interests of the children should be paramount in any consideration where they are concerned.
 
Michelle Munro
Attorney
LLB (NMMU)