Child Contact Disputes

A right to contact to a child or a contact order, entitles a person to see, spend time with or otherwise communicate with a child of whom he or she does not have care. The term “contact” in the Children’s Act, has a broader meaning than “access” used in the previous Children’s Act and is defined as:

  • maintaining a personal relationship with the child; and
  • if the child lives with someone else –
    • communication on a regular basis with the child in person, including
    • visiting the child;
    • being visited by the child; or
    • communication on a regular basis with the child in any other manner, including
      • through the post; or
      • by telephone or any other form of electronic communication.

Where a child’s parents do no reside together, contact serves as a tool to promote a continuing parental relationship between the non-custodian parent and his or her child. Contact to a child may also be granted to persons other than the child’s parents, as long as the intended contact will be in the child’s best interest.

The right to contact vests primarily in a child. A child’s welfare is usually best promoted by contact with his or her other parent, especially where there is already a well-established relationship between that parent and the child. However, no-one has an undisputable right of contact with a child – an entitlement to reasonable contact will always depend on whether the contact is in the child’s best interests.

In considering the parameters within which contact should be permitted, a Court must balance the competing interests of the custodian parent (whose discretion to control the child’s day-to-day needs and upbringing) should not be unduly disrupted, with those of the non-custodian parent, whose contact should not, without good reason, be so confined as to impede on his or her relationship with the child. The right which a party has towards contact with a child, does not entitle the custodian parent to impose unreasonable restrictions or restrictions so severe as to render contact a nullity.

Contact by Someone other than the Child’s Parents

Section 7 of the Children’s Act recognises a child’s need to “maintain a connection with his or her family, extended family, culture or tradition.” Thus, in principle, anyone “having an interest in the care, well-being or development of a child”, may apply for contact if this will be in the child’s best interests.

Contact of an Extra-Marital Child with His or Her Father

If a child’s parents from a marriage do not reside together anymore, the non-custodian parent continues to share in the parental responsibilities and rights of the child and has a prima facie right to claim contact.

However, no parent’s claim to contact is unassailable and all such claims is dependent on whether it will be in the child’s best interest. Some categories of fathers do not have parental responsibilities and rights (as discussed herein before) and do not, therefore, have a right to contact with their child. Accordingly, if a child’s mother is not willing to allow contact with a child to the child’s father, the father will have to apply to the High Court or Children’s Court for an order regulating contact. The main criteria which the court will consider is whether the proposed contact will be in the child’s best interest.

In general, once a bond has been formed between a child and a parent, it will usually be in the child’s best interests that the bond be maintained.

Defined or Structured Contact

Where parents of a child are unable to reach an agreement regarding contact with the child by the non-custodian parent, a court may prescribe the parameters within which contact is to be exercised. If such an order is made, both parents are required to act in accordance therewith. Contact arrangements should be detailed and should not interfere with the child’s scholastic, religious or social activities.

Although contact usually allows the non-custodian parent to remove the child to his or her home during contact periods, it may under certain circumstances be restricted to visitation at the custodian parent’s home only or in the presence of a third party. Any conditions imposed on the non-custodian parent must not be so burdensome as to unduly restrict his or her personal freedom.

Where there is a poor relationship between the child and the non-custodian parent, a court may order that contact be phased in, in a controlled environment, thus allowing both child and parent to foster a relationship.

In the Child’s best Interest

When considering care and contact, Section 7 of the Children’s Act 2005 requires that the following factors be taken into consideration when the best interests standard is applied in any matter governed by the Act:

  • the nature of the personal relationship between—
    • the child and the parents, or any specific parent; and
    • the child and any other caregiver or person relevant in those circumstances;
  • the attitude of the parents, or any specific parent, towards—
    • the child; and
    • the exercise of parental responsibilities and rights in respect of the child;
  • the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs;
  • the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from
    • both or either of the parents; or
    • any brother or sister or other child, or any other caregiver or person, with whom the child has been living.
  • the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
  • the need for the child—
    • to remain in the care of his or her parent, family and extended family; and
    • to maintain a connection with his or her family, extended family, culture or traditions;
  • the child’s—
    • age, maturity and stage of development;
    • gender;
    • background; and
  • any other relevant characteristics of the child;
  • the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
  • any disability that a child may have;
  • any chronic illness from which a child may suffer;
  • the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
  • the need to protect the child from any physical or psychological harm that may be caused by—
    • subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
  • exposing the child to maltreatment, abuse, degradation, ill treatment, violence or harmful behaviour towards another person;
  • any family violence involving the child or a family member of the child; and
  • which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

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Should you require our assistance with a custody dispute, please e-mail us at divorce@barnardinc.co.za.

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