Guardianship of children is vital to the children’s and the parents’ lives. A parent or a person who wishes to apply for the sole guardianship of a child must understand what is expected of a guardian. 

 Legislation 

In terms of section 18(2)(b) section 18(3) of the Children’s Act, 38 of 2005 (hereinafter referred to as “the Act”), a guardian must: 

  • administer and safeguard the child’s property and property interests; 
  • assist or represent the child in administrative, contractual and other legal matters; or
  • give or refuse any consent required by law in respect of the child, including consent to the child’s marriage, adoption, the child’s departure or removal from the Republic, consent to the child’s application for a passport, consent to the alienation or encumbrance of any immovable property of the child.

The natural guardianships are usually the parents; however, if they cannot carry out their duties, the court appoints a ‘legal guardian’ for the children. The High Court of South Africa is the upper guardian of all children in South Africa. 

Suppose a guardian is not satisfied with their duties as set out in the Act. In that case, the High Court of South Africa can be approached to intervene and has the power to terminate the guardianship and transfer care of the child to another person or parent. Therefore, this raises the discussion about when guardianship can be taken away from the other parent or, in certain circumstances, be awarded to a third party. 

 The following factors are taken into consideration: 

  1. Whether the parent has shown any interest in building or maintaining a relationship with the minor child; 
  2. The frequency of the parent and the minor child’s contact with one another; 
  3. Will the parent that is going to obtain sole guardianship be able to provide for the minor child on his/her own; 
  4. The best interest of the minor child needs to be considered; 
  5. Whether the other parent complies with any of their parental rights and responsibilities in terms of contact, care or maintenance. 

When Can You Launch A Guardianship Application?  

  • If your ex-spouse does not contribute in any manner towards the upbringing of your child; 
  • If you want to travel with your child outside the Republic; 
  • If you need to apply for an unabridged birth certificate or passport of a child; 
  • If the minor child perhaps needs to be adopted by a new spouse. 

If you have been the only parent making all the decisions of the minor child’s well-being without assistance from the other parent, however, in instances where the administration where both parents’ consent is necessary, the other party refuses assistance as a way of punishment or spite then you need to consider bringing a guardianship application to ensure that you can make day-to-day decisions pertaining to the minor child and to act in minor’s best interest.  

Conclusion 

A child’s legal guardian should be a fit and proper person, responsible and a trusted friend or family member. If required, a legal guardian may be appointed by way of an application to the High Court of South Africa. The appointment of such a legal guardian does not affect parental rights and responsibilities and would not make the legal guardian financially responsible for the children. 

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za.    

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