Divorce Article 9: Guardianship, custody and access to minor children.

article, we shall briefly discuss some issues regarding guardianship, custody, and access.

Kindly note that the following

relates to instances when the parties cannot agree on which parent should exercise

these responsibilities.

Guardianship means a parent’s

(or other person’s) capacity to legally administer (control) a minor child’s

estate on his or her behalf and assist the minor in performing any legal acts.

This can be, for example, in the conclusion of a valid and binding contract or as

previously mentioned the marriage of a minor. During the marriage, both parents

exercise full guardianship and custody (discussed below) over children born of

the marriage.

We find it necessary to again

record Section 6(3) of the Divorce Act 70 of 1979 (“the Act”) for the sake of

clarity:

court granting a decree of divorce may, in regard to the maintenance of a

dependent child of the marriage or the custody or guardianship of, or access

to, a minor child of the marriage, make any order which it may deem fit, and

may in particular, if in its opinion it would be in the interests of such minor

child to do so, grant to either parent the sole guardianship (which shall

include the power to consent to the marriage of the child) or the sole custody

of the minor, and the court may order that, on the predecease of the parent to

whom the sole guardianship of the minor is granted, a person other than the

surviving parent shall be the guardian of the minor, either jointly with or to

the exclusion of the surviving parent.”

At the time of the divorce, or

after this, the court may make an award that guardianship will be shared

between the parents or sole guardianship will be awarded to one parent only.

When guardianship is shared by the parents then they will be required to seek

the consent of the other for the matters set out in the Children’s Act as discussed

in our previous article. If sole guardianship is awarded to one parent only

then consent is not required, however, note that sole guardianship is not easily

awarded. As discussed in our previous article the consideration would be the

best interests of the minor child.

Custody means a parent’s (or

another person’s) capacity to have the physical “possession” of a minor,

basically with which parent the minor resides. This furthermore involves the

care and support of the minor and leading the minor in his or her day-to-day

life.

If a court is satisfied that

the minor in question has the necessary maturity the court may take into

consideration which parent they wish to reside with. The court may also award

joint custody, however, this will depend on the facts of each case. In exceptional

circumstances, the Court may even deprive the parents of custody and award this to a

third party. We reiterate that this is exceptional. As above this will depend

on the best interest of the minor child.

Access is awarded to the

parent who did not have custody awarded to them. Even if one parent is awarded

sole custody this does not mean the other loses their status as a parent. If

the parents agree on the manner in which access is to be exercised then this

can be recorded in the consent paper previously discussed. If not then the

court will be required to determine the rights and limitations on access in the

best interests of the minor child.

In our next article, we shall

focus on the aspects of maintenance for minor children. We shall discuss

maintenance for spouses in a separate article.

Related Practice Areas: Maintenance & Spousal Support | Child Custody

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