SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
expert will produce a report with recommenda - tions regarding what care and contact arrange - ments will be in the child’s best interests. This forensic investigation can be conducted by the family advocate’s office (at no cost to the parties) or – if the parties have the means – by a psychologist or social worker in private practice. This forensic investigation will take into account the factors set out in Section 7 of the Children’s Act. If one parent disagrees with and refuses to accept and implement the recommendations made by the appointed expert, the other parent can approach the court to ask for the implemen - tation of the expert’s recommendations in the child’s best interests. The courts prefer a single joint expert to be appointed, but parties are entitled to appoint their own experts should they so wish. The experts’ duty, however, is to the court, and not to either of the parties. As the upper guardian of minor children, the High Court has jurisdiction over all child-related mat - ters and can make any order in the best interests of the child(ren), whether in accordance with the expert’s recommendations or not. Custody and Parental Responsibility In terms of Section 18 of the Children’s Act, married parents are co-holders of full parental responsibilities and rights in respect of a child, including the responsibility and right to: • care for the child; • maintain contact with the child; • act as guardian of the child; and • contribute to the maintenance of the child.
A biological mother of a child, whether married or unmarried, has full parental responsibilities and rights, as set out in Section 19 of the Children’s Act. An unmarried father, on the other hand, only acquires full parental responsibilities and rights in the following circumstances: • if, at the time of the child’s birth, he was living with the mother in a permanent life partner - ship; or • if he consents to be identified as the child’s father or pays damages in terms of custom - ary law and contributes or has attempted to contribute in good faith to the child’s upbring - ing for a reasonable period, and contributes or has attempted to contribute towards expenses in connection with the maintenance of the child for a reasonable period. Restrictions on Court’s Ability to Make Orders on Living and Contact Arrangements A court can make any order as to the child’s living and contact arrangements, but must be satisfied that the care and contact arrange - ments are in the child’s best interest, having regard to the factors set out in Section 7 of the Children’s Act. Any settlement agreement con - cluded between parties where minor children are involved must be sent to the family advocate’s office for endorsement. Section 6 of the Divorce Act regulates the safe - guarding of interests of minor and dependent children, and states that a decree of divorce shall not be granted unless the court is satisfied that provision was made for the welfare of any minor or dependent child of the marriage. Child Maintenance Child maintenance refers to a child’s direct and indirect reasonable monthly expenses.
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