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Question
Posted by: NL2 | 2011/09/29

Parental responsibilities

Ex wife left house and kids in 2009. Divorced this year. Kids in my care. Court ordered that she can see the kids 4 hours every Sunday and must go for parental guidance. She has not done so and has irregular contact with children. She battles to take care of herself. She prefers to be unemployed to avoid paying maintenance. Her boyfriend also unable to hold a job. As the other natural guardian I understand that she will step into my shoes if I pass away. What can I do to ensure continued stability for the children? Any advise would be appreciated.

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Our expert says:
Expert ImageFamily law expert

The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.

Section 27 of the Children’s Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don’t have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child’s expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.

So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.

Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

In terms of Section 31 of the Children’s Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.

Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

If you die and the other parent is also no longer alive the grandparents on either side may apply for the child’s care or guardianship.


Answered by:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

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Our users say:
Posted by: FIO | 2011/10/05

That person who you nominate would not necessarily get those rights. They would have to apply for them through the CHildrens COurt, or High Court. They are more likely to be granted than guardianship.

However, with sole guardianship your ex could move home, so whatever, but if someone else has rights as per a court order, then your ex moving may be an infringment of those rights as per Section 35 of Childrens Act.

So, put in your will what you want, but that person will still only be allowede to have those rights upon application to a court. You could start the process now even by supporting an application byt he person you want to acquire those rights now, you are entitled to do so, and the other person is entitled tyo apply, provided there is sufficient reason for a court to cobsider granting those rights.

Reply to FIO
Posted by: NL2 | 2011/10/03

Hi FIO,

Thank you for clearing that up for me. If I understand correctly then rights to care for the kids in the event of my death is what I need to put in place. Any idea how I would phrase this in my will?

Reply to NL2
Posted by: FIO | 2011/09/30

Where co-guardianship exists, and one guardian dies, the remaining guardian becomes the sole guardian. Any other person may apply for guardianship, or co-guardianship, and obtain it either through consent of the sole guardian, or through such guardianship being granted through High Court.

You can nomionate in your will, but it is not enforceable as the child already has a guardian. That person would have to apply for guardianship status.

Remember there is a difference between guardianship and care. The right to care for does mean guardianship. Anybody can apply for the right to care for a child, and the courts will be far more likely to grant rights to care, but not necessarily guardinaship.
\
For example, my ex and I are guardians of our son, but my girlfriend, or her boyrfriend could apply to the court for rightys to care, aside from those already made provision for in the Childrens Act by default, such as the right and responsibility for teachers to care for children.

Guardianship implies the right to make make major decisions as contemplated in Section 18 of Act.

So clear up what you want in terms of guardianship and care, and rather make provision for care as opposed to guardianship, as it is unlikely a court would appoint a 2nd guardian should you pass on, but a court would certainly consider granting rights to care and contact, or more simply put, limited or specific rights and responsibilities that would ensure the well-being of your child in your absence.

Reply to FIO
Posted by: NL2 | 2011/09/30

Dear Bertus,

Thank you so much for the detailed answer. Just one last question. Can I appoint a co-guardian in my will to keep an eye on my ex with regard to the kids. If things should go wrong what would the recourse be?

Reply to NL2
Posted by: family law expert | 2011/09/30

The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.

Section 27 of the Children’s Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don’t have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child’s expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.

So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.

Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

In terms of Section 31 of the Children’s Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.

Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

If you die and the other parent is also no longer alive the grandparents on either side may apply for the child’s care or guardianship.


Answered by:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Reply to family law expert
Posted by: NL2 | 2011/09/29

Tnx for the comments. Will keep you posted about developments....

Reply to NL2
Posted by: G-Dad | 2011/09/29

Not true, she will not by default get the children when you die, specially if she become a stranger to them, you can still appoint a guardian, if you die, she will have to dispute the appointed guardian, meaning that the courts will request a family advocate investigation and social workers will evaluate the condition the mother live in and your appointed guardian, the children will also be interviewed and base on the the reports there is a good chance that the judge will give the children to the appointed guardian based on the fact the mother currently has supervised access.

Reply to G-Dad
Posted by: NL2 | 2011/09/29

Hi FIO,

Maybe I''m paranoid but I really do not trust the mother to have the best interest of the children at heart. Her track record shows otherwise. I do not have a strong enough case or the finances to take it to court. She is not an unfit mother, just not a good one. Giving her free reigns is bad, very bad....

Reply to NL2
Posted by: FIO | 2011/09/29

Consider an application to High Court for sole guardianship, which would then leave you to make a decision in your will on who looks after your child when you pass away.

But, be warned, you will really need to have a strong case for a court to revoke parental guardianship, you would have to prove she is an unfit mother and therefore unfit to act as a guardian. Can be done, but you need a convincing argument and justification, with watertight evidence to support your application.

Reply to FIO
Posted by: NL2 | 2011/09/29

Not trying to rule. Just do not beleive in just leaving things to chance. I care to much about the well being of our children.

Reply to NL2
Posted by: Ann | 2011/09/29

You cannot rule out of the grave boet!

Reply to Ann

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