A parent may either have full or specific parental responsibilities and rights in respect of a minor child. The responsibilities and rights include the responsibility and right to care for the minor child, maintain contact with the minor child, act as guardian and contribute towards the maintenance of the minor child. Whether a parent maintains full or specific parental responsibilities and rights may change over time, taking the best interests of the minor child into account.
The terminating of responsibilities and rights of parent/s in respect of the minor child
The High Court of South Africa is seen as the upper guardian of the minor child and its most important consideration in any matter concerning a minor child, is the minor child's best interests.
Should a parent of responsibilities and rights over a minor child be inadequate in or failing to exercise such responsibilities and rights, resulting in another parent or interested party being unjustifiably prejudiced by the actions of the neglecting parent and having the effect that the minor child's best interests are not catered for or neglected, the High Court has a discretion to terminate or suspend the neglecting parent's responsibilities and rights.
In relation to the above, the High Court can make an order to:
a) Suspend a person's responsibilities and rights for a period;
b) Terminate any or all of a persons' parental responsibilities and rights.
An application for the termination of parental responsibilities and rights may be launched by:
a) A co-holder of parental responsibilities and rights in respect of the minor child;
b) Any other person with sufficient interest in the protection, wellbeing and development of the minor child;
c) The minor child, acting with leave of the court;
d) A person acting in the minor child's interest, with leave of the court;
e) The Family Advocate or the representative of any interested state organ.
Application for guardianship in respect of the minor child
Section 18 of the Children's Act, Act 38 of 2005 regulates guardianship over minor children. In terms of Section 18(3) of the Act, a guardian must safeguard the minor child's property and assist the minor child in any legal, administrative or contractual matters. A person can apply for guardianship if he/she wants to acquire legal rights over a minor child. If you possess guardianship over a specific minor child, you have the right to participate in important decisions pertaining to the minor child.
Any person, who has an interest in the development, care and well-being of a minor child, may apply to a court to be granted the right of legal guardianship over a child. In the event of such an application the Court will take inter alia the following into consideration:
a) The best interest of the minor child;
b) The relationship between the minor child and the applicant;
c) The degree to which the applicant has played a role in contributing towards the maintenance and care of the minor child;
d) Any other relevant factor.
As stated above only the High Court has the jurisdiction to make an order.
A parent's responsibilities and rights in respect of a minor child can be terminated or suspended if it is deemed in the child's best interest, allowing another interested person to become the legal guardian of the minor child.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.