Law of Parent and Child PDF

Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.6 CO-EXERCISE OF PR & R General rule: Co-holders of responsibilities and rights may act inde...

Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.6 CO-EXERCISE OF PR & R General rule: Co-holders of responsibilities and rights may act independently, without the other co-holders’ consent. There are only 2 exceptions to this rule: (a) Where more than one person holds guardianship in respect of a child (b) Where major decisions has to be made which involves the child 7.6 CO-EXERCISE OF PR & R Guardianship – All guardians must consent to: • marriage • adoption • departure or removal from country • passport • property 7.6 CO-EXERCISE OF PR & R Major decisions – Person must give due consideration to • child’s views and wishes • co-holder’s views and wishes • JvJ • “due consideration” does not mean the person is bound to those views and wishes 7.6 CO-EXERCISE OF PR & R Parenting plan: Deals with EXERCISE of responsibilities and rights - How is this different from a PR & R agreement? - Not obligatory in all cases - Formalities 7.6 CO-EXERCISE OF PR & R Refusal to allow exercise of parental responsibilities and rights: • If co-holder acts on contravention of a court order and refuses another co-holder the opportunity to exercise their rights • Criminal offence and can be fined or imprisoned Law of parent and child 7.1 Definition and Constitutional protection 7.2 Sources 7.3 Terminology 7.4 Content of PR & R 7.5 Acquisition of PR&R 7.6 – 7.7 Exercise of PR&R 7.8 Termination 7.9 Maintenance 7.7 CO-EXERCISE OF PR & R AFTER DIVORCE Legislation that protects the child’s interests at divorce Divorce Act 70 of 1979 Mediation in Certain Divorce Matters Act 24 of 1987 Court may make order: - Divorce Act 70 of 1979 In relation to custody (care) In relation to guardianship Order regarding access (contact) Order for maintenance Bests interests of the child is the overriding principle. Divorce Act 70 of 1979 Court may NOT grant a decree of divorce unless: • provisions with regard to the welfare of the child are satisfactory • court has considered report and recommendations of the family advocate in the case of an enquiry CO-EXERCISE OF PR & R AFTER DIVORCE Legislation that protects the child’s interests at divorce Divorce Act 70 of 1979 Mediation in Certain Divorce Matters Act 24 of 1987 The Family Advocate should institute an enquiry under certain circumstances (Van Vuuren v Van Vuuren): 1. Serious problems with regard to contact 2. Intention not to grant care of young children to mother 3. Intention to separate children 4. Intention to grant care to third party 5. Intention to make an arrangement not in the interest of the child Relevant factors in the Children’s Act: • The nature of the relationship between the child and parents AND the capacity to provide for the needs of the child • The need for the child to remain in the care of a parent and maintain a connection with his or her family • Child’s gender • The age, maturity and wishes of the child • Nature of the relationship between child and parent AND capacity of parent to provide for needs of child - Maternal preference rule Van der Linde v Van der Linde Ex parte Critchfield Constitutionality of principle • Need to remain in the care and maintain a connection with family (desirability of keeping siblings together) - Van der Linde v Van der Linde: siblings should not be separated unnecessarily) • Consideration of child’s gender as a factor - Doctrine of same-sex matching • Views and wishes of child - s 10 of Children’s Act depending on child’s age / maturity / stage of development RE-ASSIGNMENT OF PR & R AT DIVORCE Contact orders - Where one parent is primary care giver - Court makes a contact order in relation to the other parent - Right to reasonable contact Role of sexual preferences in contact orders - Van Rooyen v Van Rooyen: children must be protected “from confusing/wrong signals” - V v V: Criticized on constitutional grounds - Ex parte Critchfield: Not be too concerned with sexual preferences unless it poses a threat