Guardianship is a parental right and responsibility that a biological parent has with regards to his/her child. It is, amongst others, set out in Section 18 of the Children’s Act, 38 of 2005 (“the Act”). What is important to note here, is that a person can also be awarded guardianship over a child other than his/her own, by the high court of competent jurisdiction.
In South Africa, a child becomes an adult when he/she turns 18. Prior to that date, the person/s who have full parental responsibilities and rights in respect of that child, and in particular guardianship, must make legal decisions on the child’s behalf. So, in other words, guardianship is the right and responsibility to make legal decisions for your child or for the child for which you have been appointed as guardian.
A biological mother, whether married or unmarried, automatically has full parental responsibilities and rights in respect of her child. But, if the mother of a child is a minor herself (younger than 18) and the father of the child does not have guardianship in respect of the child (because he is an unmarried father and he does not comply with the requirements in terms of Section 21 of the Act), then the guardian of the child’s biological mother is also the guardian of the child.
A married biological father of a child automatically has full parental responsibilities and rights – which include guardianship – in respect of his child. In as far as an unmarried father is concerned; he must first comply with the requirements set out in Section 21 of the Act before he acquires full parental responsibilities and rights.
What does guardianship mean?
Guardianship is a parent’s responsibility and right to:
- protect the child’s interests in as far as the child’s property is concerned;
- assist the child in legal matters (for example: to represent the child in contractual matters or litigation);
- Give or refuse consent as required by law by all the parties who have guardianship of the child, in respect of:
o the child’s marriage;
o the child’s adoption;
o the child’s removal or departure from the Republic of South Africa;
o the child’s application for a passport;
o the alienation or encumbrance of the child’s immovable property.
Can I nominate another person in my Will to act as my child’s guardian?
A person may nominate someone as the guardian of his/her minor child upon his/her death. However, please take note that divorced parents retain their joint (full) parental responsibilities and rights in respect of their children. Therefore, upon each other’s death, the surviving parent will automatically obtain care for the child and become the sole guardian of the child.
If the deceased parent has nominated someone else in his/her Will as guardian of his/her child, then the surviving parent will have to agree to share his/her parental responsibilities and rights with that person, before the provisions of the Will can take effect. If the surviving parent does not agree to this, the person may apply to the High Court for an order which will allow him/her to be appointed as the child’s guardian provided that he/she has good reasons for doing so.
Conclusion
From the above, it is clear that being a guardian is a huge responsibility and one that should not be taken lightly. In order to act as a child’s guardian, it is required from a parent, or guardian, to know and understand the legal implications of their actionsbecause the same will have a direct impact on the child’s interests. Also, importantly, a guardian can be held liable for the mismanagement of a child’s funds, property or assets.
Written by Talita Erasmus – a practising attorney at Alan José Incorporated.
Contact us for more information regarding care, contact and guardianship of a minor child.
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