Parental Rights And Responsibilities Disputes

Section 18 of the Children’s Act 38 of 2005, deals with parental rights and responsibilities. A person’s parental rights and responsibilities consists of 4 main subjects:

  1. The responsibility to take care of a minor child. Usually, the parent with primary residency will be the parent who will mainly exercise this responsibility
  2. The right to maintain contact with a minor child. Usually, the parent with whom primary residency does not vest, will mainly exercise this right.
  3. The right to act as guardian of a minor child. This right vests with both parents and can only be adjudicated by a High Court who is the upper guardian of all minor children.
  4. The responsibility to contribute towards the maintenance needs of a minor child. This responsibility vests with both parents but usually, the parent with whom primary residency does not vest, will mainly have the responsibility to make a monthly maintenance contribution towards the parent with primary residency.

It is however very important to know that both biological parents have full parental rights and responsibilities over a minor child unless otherwise determined by an order of court.

Primary Care And Contact – Old Term: Custody & Contact Disputes

When parents decide to separate or where I child is born out of wedlock, the most important decision that needs to be made is where the child will primarily reside and what contact the non-resident parent shall have. The parent with whom the child will primarily reside will be awarded primary care and look after the daily care of the minor child. The parent who is not the primary caregiver will have certain rights of contact with the minor child. We assist all parties to reach a suitable scenario that serves the best interest of the minor child and will best suit their personal circumstance. It is very important to note that the party’s case will be different as each and every child has their own need and accordingly there are no textbook guidelines on what primary care and contact entail. Each and every situation needs to be considered in their personal circumstances. 

Parental Alienation

In most of the high-conflict divorces where minor children are involved, one will deal with a situation where a child is being alienated or negatively influenced by the other parent. Parental Alienation entails the psychological manipulation of a child into demonstrating unwarranted fear, disrespect, or hatred towards a parent and/or other family members. In cases like this, it becomes very difficult to determine the true wishes of the influenced minor children, and in worst-case scenarios, the alienator will resort to false sexual allegations against the alienated parent to revoke his/her contact with the children. This conduct is a severe form of child abuse. It is very important to involve an expert in this circumstance to determine the true wishes of the minor children and to provide a recommendation on primary residency and contact going forward which shall safeguard the children against any negative influence and shall serve their best interest.

Access To Children

It is not the parent’s right that prevails, but it is the minor child’s right to maintain a stable and loving relationship with both parents and his/her extended family members which is of utmost importance.  It is also important to note that a parent’s right to access a minor child cannot be withheld due to a parent’s failure to comply with parental responsibilities such as contributing towards maintenance.

Termination Of Parental Rights And Responsibilities

In terms of section 28 of the Children’s Act of 2005 a parent’s parental rights can be limited or even be terminated in full. Due to the drastic nature of such an application, there are certain factors that the courts will first consider before granting an order to this effect.

Obtaining Parental Rights For Interested Parties

The Children’s Act of 2005 makes a provision that any interested party to a minor child may approach the court to be awarded certain and/or full parental rights and responsibilities. When the court is faced with an application of this nature there are certain factors which must be taken into account.

Parenting Plans

Is a process entailing negotiation and dispute resolution where a document is drafted, focusing on the child and which is regulated by legislation to assist parents to coordinate and regulate the manner in which they (as co-holders) will exercise their respective parental rights and responsibilities.


Consists of spousal maintenance and child maintenance. Each parent has a parental responsibility to maintain their children, and such responsibility is regulated by the Maintenance Act 99 of 1998. Such responsibility is dependent on the needs of the minor children in addition to the income of each respective parent.