The Children's Act

Parents and Children: Visitation Rights over the Holidays

In South Africa, the Children's Act 38 of 2005 (“Children's Act”) governs all matters involving parental rights and responsibilities. The Children's Act specifically deals with visitation rights (referred to as the right to contact) and provides that “In all matters concerning the care, protection and well-being of a child, the child's best interest is of paramount importance.” This means that even decisions regarding a child's whereabouts over the holidays must be in the best interest of that child. 

During the holidays, it is important that children get the opportunity to spend time with both their parents and family members. In instances where a child's parents are not living together, it can sometimes lead to uncertainty, confusion or disputes in respect of which parent the child will be staying with over the holidays. Parents might agree to spend the holidays with the child on alternative years or share contact within the same holiday period. For example, the child might spend time with one parent for the entire period of the holidays one year and spend time with the other parent the following year. Alternatively, spend Christmas with one parent and New Year with the other parent. The parents must select an arrangement that is both in the best interest of the child and suitable for their current circumstances.

This article will explore how parents can navigate visitation and having contact to their child in these instances. 

What does the law say about child contact rights?

Section 18 of the Children's Act lays out the statutory parental rights and responsibilities of all parents, including the right to maintain contact with a child. Contact refers to having a personal relationship with a child through physical or indirect contact. It allows the non-custodian parent to have a meaningful relationship with their child by spending time with them (physical contact) or having phone calls or video calls with the child (indirect contact). Our Child Contact Quicklaw on our website provides more details on this topic and how to apply for child contact in court.

It is not always ideal to approach the courts to resolve disputes about parental rights, however, it is possible for parents to jointly agree on each other's parental rights and responsibilities in a parenting plan under section 33 of the Children's Act.

In essence, a parenting plan is a formal agreement between parents setting out the arrangements relating to the care and contact with the child. This may include where and with whom the child will reside, aspects around child maintenance, as well as the schooling and religious upbringing of the child. A parenting plan can also set out formal arrangements on how holidays are to be divided between the parents, ensuring that the child has access to both parents during special occasions. A parenting plan can be a useful tool to avoid disputes and parents must seek assistance from a family advocate, social worker or a psychologist when drafting the parenting plan.

Can informal arrangements be made between the parents?

Although contact and visitation arrangements done by a formal parenting plan or court order has more weight to it, it can also be done informally where the parents agree on which dates or occasions they will each spend time with the child. For example, this can be done through telephonic or e-mail communications between the parents. 

When making informal agreements, parents must consider the provisions of any parenting plan or court orders that might be already in place and remember that the ideal is to prevent any disagreements or disputes relating to who gets to spend time with the child during a specific holiday season. 

In the event that a dispute arises between the parents in relation to the child, mediation is often recommended as a first step before any further action can be taken. The mediation process must be facilitated by a social worker or any other suitably qualified person. Mediation allows for both parents to be heard and work towards an amicable solution to the dispute without resorting to tedious and lengthy court battles.

If there is no formal parenting plan or court order and the mediation or informal arrangements do not yield a positive outcome for the child, the parents can approach the family advocate, a social worker or a competent court for a formal and legally binding arrangement relating to the child. Once a court order is in place, both parents are legally bound by its terms. Non-compliance with the court order will result in a parent being found guilty of a criminal offence. 

Conclusion

Parents are encouraged to work together to ensure that a child benefits from both parents and gets to enjoy a balanced, stress-free and fulfilling holiday by spending time with both parents in a fair and equitable manner. In the event of a dispute, legal intervention may be necessary as our courts prioritise the best interests of a child and their overall well-being.

Did you know…In all divorce proceedings where there is a minor child, a parenting plan must be drawn up with the assistance of a family advocate and becomes an order of court.