What rights does a child have exactly?
We hear the term “Children’s Rights” a lot lately… But, what rights does a child have exactly?
It has been amazing to see all the press and publicity that children have had in the media as of late. Albeit, not always under the best circumstances as it is mainly the horrific crimes that have been publicised, that have resulted in the fundamental rights bestowed upon children in South Africa becoming a hot topic and popular discussion. But what does it all mean?
No one better to explain this to us than Tania Abbotts, a Family Law specialist at Hammond Pole Attorneys.
Thanks to the popular European and American legal programmes that we watch on our TV’s, I will always get clients demanding sole custody. It is usually at the first consultation that I explain that South Africa does not have “custody” per say, but rather deals with children’s rights under 4 specific rights and obligations namely:
Right to Care: This is kind of similar to custody in America. Simply put, it is the right that all children have, which includes having adequate: shelter, food, education and medical care. Whether a parent will be awarded primary care or whether the parties need to share care on a weekly basis will depend on various factors: how old the children are, the ability that the party has to provide care for the child etc.
Right to maintain contact: This is kind of similar to visitation in America. It is the right that the other parent would have access to contact the child. This could include telephonic/video chat/email access or it could include alternate weekends, certain days a week where the child would stay with the other parent.
Right to act as guardian: Due to the fact that children are all considered minors until they reach majority, parents often need to exercise parental guardianship over them for legal reasons – ie, if my 14 year old daughter wishes to get married, I as the parent must consent; if my 15 year old son wishes to undergo major cosmetic surgery, I as the parent must consent.
The obligation to contribute towards maintenance: This is probably the most antagonistic concept amongst parties. Either one party feels the amount of maintenance claimed is excessive, other one party feels that the other party is not contributing enough. Should the parties be unable to agree to an amount, then they can refer the matter to the maintenance court for a magistrate to decide. This means that the parties will need to set out their financial positions as well as justify the children’s expenses.
Regrettably, parties in a divorce try and use children’s rights to attempt to gain an advantage in divorce negotiations. They either request ridiculous amounts to be paid towards maintenance, or they demand shared care even though they know that their work hours prevent them from collecting the child from school, and taking them to after school activities etc.
Again, I am reminded of my favourite analogy that I share with my clients: Often life demands that we wear various hats that represent the various roles we play in life. Sometimes we wear our “mommy” hat. Sometimes we wear our “wife” hat. It is possible to wear the hat of “daddy,” provided that our hat as “future ex husband” that doesn’t interfere, or even vice versa as a father.
What we need to always remember is that our children are also persons with rights and they need to be protected, the children and their rights.
PLEASE NOTE THAT WE STRONGLY RECOMMEND THAT YOU CONTACT US DIRECTLY FOR A CONSULTATION FOR SPECIFIC ASSISTANCE AND ADVICE REGARDING YOUR SPECIFIC MATTER AS THE INFORMATION CONTAINED IN THIS ARTICLE IS INTENDED AS A GENERAL GUIDELINE AS TO FAMILY LAW IN GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE.