POLOKWANE – Parents’ rights and obligations regarding their children are set out in Section 18 of the Children’s Act, Act 38 of 2005. In a nutshell it involves the care and protection of children as well as teaching children values and giving a lot of love and attention, says Magdaleen de Klerk from DDKK Attorneys.

Sometimes a grandparent, aunt or uncle, that are related by blood have to look after the child but they do not automatically have rights.

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“The Constitution and Children’s Act, however, acknowledges the right of a child to have a relationship with his or her extended family. Article 28 (1) (b) states as follows: “Every child has the right – (b) family care or parent care, or appropriate alternative care when removed from the family environment”. Grandparents as well as any other interested persons may, in terms of the provisions of Section 23 of the Children’s Act, approach the Court to obtain specific rights, among others, if it appears to be in the best interests of the minor children.”

As with grandparents, step-parents do not have automatic rights. “They are regarded as “interested persons” in terms of the provisions of Article 23 of the Children’s Act and, like the grandparents and other blood relatives, they can approach the Court for the granting of specific rights.”

Now you may wonder if a non-blood related gaurdian has any rights. According to de Klerk, a guardian’s consent is required in, inter alia, the following cases:

4.1 To take the child out of the country;
4.2 To apply for a passport for the child;
4.3 to allow the child to be accepted;
4.4 For the child to marry

In terms of issues regarding maintenance, De Klerk explains:

“Both parents are automatically obliged to keep their children in law. Each parent must contribute pro rata to his or her child’s reasonable maintenance needs according to his or her ability. What is reasonable is determined by the parents’ abilities and standard of living. If one parent can not contribute to the maintenance of his or her child(s) because he or she does not earn income or does not have any assets that can be paid for maintenance, the grandparents can, if they have the ability to, be ordered by the Court to pay maintenance for their grandchildren.”

With an increase in divorce, one might see a mom or dad lacking in his or her rights towards their children. De Klerk says both parents still retain their full parental responsibilities and rights regarding the care of the minor child (s) as well as guardianship as set out in Section 18 of the Children’s Act.

“All important decisions affecting the children for example as regards their health, education and accommodation, they must still be taken by both parents. However, the children will live primarily with one parent and exercise contact with the other parent. Both parents must also contribute to the children’s maintenance,” she concluded.

maretha@nmgroup.co.za