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

In our previous article, we considered the rights of minor children and the Family Advocate. In this 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:

“A court granting a decree of divorce may, regarding 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 the same, 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 in the best interests of the minor.

Custody means a parent’s (or other 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, they may even deprive the parents of custody and award this to a third party. We re-iterate that this is exceptional. As above this will depend on the best interest of the minor.

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.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

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.