The New Childrens’s Act and new trends in the children’s courts
IntroductionAs we are all aware, many things have changed with the inception of the newChildren’s Act 38 of 2005. The Act aims to give rights and responsibilities to both biological parents of a child and to institute clearly defined decision making rights of each parent. The one thing that has not changed is that the over encompassingyardstick to decide on the rights of a parent with regard to a child is still “the bestinterest of the child” which is clearly defined for the first time in S7 of the Act. In thisarticle I will deal with exactly what “the best interest of the child entails as well as thenew terminology for “custody” and “access” in the new act.“Custody” – now defined as “primary residence” and “parental responsibilities andrights”The new Children’s Act aims to bring equality to a parenting relationship were a childlives with one parents and the other parent also wishes to exercise his/her parentalrights and responsibilities. These rights and responsibilities are contained in Chapter 3 of the Act. According to this chapter the biological mother has full rights andresponsibilities of a child (S19) but the biological father can also claim these rights if he was married to the mother either at the child’s conception or birth (S20).Unmarried fathers can also acquire these rights if he is living with the child’s mother at time of birth or if he has made attempts to maintain the child or contribute to itsupbringing (S21).The aim is that both parents are co-holders of parental responsibilities and rights (asenvisaged in S30 of the Act) and that they exercise these rights together and consultwith the other co-holder before making major decisions involving the child (as statedin S31). The parent with which the child stays therefore is only the holder of the“primary residence” of the child and must take charge of a child’s day to daywellbeing.“Access” – now defined as “contact”The term contact is defined in S1 of the act as maintaining a personal relationshipwith a child an if a child is living with someone else regular communication with achild whether via physical visits or through communication otherwise. Contact can berestricted by a court if it is in the best interest of a child to do so and a court can setout specific requirements regarding contact.The best interest of the childS9 of the Act states that the best interest of a child is paramount and in all mattersconcerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount interest must be applied.