On this page you will learn about parental responsibilities and rights in South Africa:
According to the South African Department of Justice, when a person has a child, he or she becomes a parent and the law says they have to take care of the child and are responsible for the child. The Act speaks about a parent’s ‘parental rights and responsibilities’. Parents have many rights and responsibilities but these are different for different people.
There are mothers and fathers who are married and raising their children together. There are single mothers and single fathers. They may be single because they were never married or they got divorced. There are people who take care of children in the place of parents or people who take care of children for a short time. All these different families have rights and responsibilities for their children. They do not always have the same rights and responsibilities and the Act explains the differences.
It is very important to understand the following categorisation of primary caregivers in South Africa:
What is guardianship?
This means the administrative part of taking care of a child. Married parents have both natural and legal guardianship.
What is a legal guardian?
A legal guardian is someone who is chosen to be a guardian either in a will or by a court (for more information see the section about the courts in Booklet 3)
What is a natural guardian?
Sometimes the biological parents are called the natural guardians.
What are parents expected to do for their kids according to the South African Children Act?
According to the South African Children Act, parents need to:
- Take care of their child,
- Maintain contact with the child,
- Be a guardian to the child, and
- Make sure that the child has financial support. This means that both parents must provide for the child’s needs. How they do this depends on how much money the parents have. This is often called maintenance.
Did you know: When a child is cared for they have a home, they are protected from harm and are fed and supported each day.Department of Justice SA
At what age can a child decide which parent to live with in South Africa
According to Breg Moodley Attorneys there is no set age in South African Law where a child under 18 can make a decision. The Children’s Act 38 of 2005 states that if the court is convinced that the child is of sufficient maturity to make his own choice and not, for instance, be influenced by his parents in his choice, the court will take his choice into consideration.
In deciding whether to take the child’s wishes into account, the court looks at age, maturity and stage of development, gender, background and any other relevant characteristics of the child.
Section 10 of the Children’s Act ([a38y2005s10] dealing with child participation) provides that: “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”.
The factors taken into account include (but are not limited to):
- The child’s age
- The child’s sex
- The amount of contact the child has had with each parent throughout their life.
- The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents).
- The child’s own testimony.
- The child’s sense of being wanted and being kept secure.
- The emotional, physical, moral, and religious well-being of the child.
- The accommodation and environment each parent is able to offer for the child, including the educational facilities available.
In special circumstances, a court may consider a child as young as 10 years old sufficiently mature enough to meaningfully contribute to decisions about her welfare.
When does a father lose parental rights South Africa
According to the SA Children Act, when a biological father is not married to the mother he loses his parental responsibilities and rights but he must still pay half of the maintenance for his child. Some unmarried fathers want to have a relationship with their child and the law says these fathers can claim some rights but they need to prove some things first.
How to get guardianship of a child without going to court in South Africa
There are two ways in which a person can become a child’s guardian, if she or he is not the parent of the child:
- By a decision of the High Court acting as the ‘supreme guardian’ of all minors, or
- In a will that was written by a sole parent or sole caregiver who passed away. The person named in the will must be a fit and proper person.
The person who is named as a guardian in a will can only become a guardian after the death of the parent and if he or she accepts the new responsibility.
When the High Court is asked to choose a guardian for a child it does not have to be the child’s parent as long as the choice is in the best interests of the child. The High Court will look at the relationship between the child and this person and also at the relationship the child has with the previous guardian.