Contact with the kids

In acrimonious divorces or relationship break-ups where children are involved, the fights are often over each parties contact with the children What is contact?

The Children’s Act 38 of 2005 makes reference to the term “contact” replacing the term “access” to children; however the concept remains the same. Generally, the party who does not have the childliving with them is entitled to enjoy contact to the child by means of visits and telephonic communication.

What if I don’t want my ex husband to see my children?

The best interests of the child are paramount. Where a person holds parental rights in respect to the child, that person may maintain contact with that child. In terms of Section 20 of the Children’s Act, a biological father of a child enjoys parental rights and responsibilities if he is married to the child’s mother or has been married to her at any time during/between or after conception or birth. As such, preventing a person with parental rights and responsibilities from having contact with the child is a serious breach of the Act and is, as a criminal act.

What if we were never married?

Historically, natural fathers of children born out of wedlock had few (if any) rights. This has changed under the prevailing legislation. In terms of the Children’s Act, an unmarried father may have parental rights and responsibilities where the following has occurred:

1. at the time of the birth of the child, he was living with the mother in a permanent life partnership; or

,2.1 whether or not he is or has lived with the mother, and he allows himself to be identified in the Births Registry as the father; and

2.2 contributes or has attempted in good faith to contribute to the upbringing of the child for a reasonable period of time; and

2.3 contributes or has attempted in good faith to contribute to the expenses in connection with the maintenance of the child for a reasonable period of time.

How do I structure the contact?

Structuring the contact is however, by and large left to the parties concerned. Often conflict arises when parties are deliberately inflexible in the arrangements regarding contact with the child. It is suggested that contact be agreed between the parties and written down. Issues such as handovers and special occasions should also be dealt with in order to avoid confusion later.

How much contact is appropriate?

There is no hard and fast rule; contact should be structured in such a way that it takes into account the issues such as the age and development of the child and the proximity of the parties’ homes. If the relationship between the children and the father of the child is not a good one, or if the child is extremely young, supervised contact may be more appropriate or contact for shorter and more regular periods.

In the event that you have concerns regarding contact between your child and your ex, it is suggested that you approach an attorney practicing family law to assist you ensuring that the best interests of the child are protected.

About the authorAndrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za