Knowing your parental rights and responsibilities in respect of your minor child is crucial in light of the current state of affairs. From a psychological and financial point of view, minor children need parental support during this very challenging time.

Parental Rights and Responsibilities the Starting Point

Parental rights and responsibilities, an umbrella term which covers guardianship, contact, care and maintenance in respect of minor children. These rights and obligations are in the ordinary sense, afforded to the biological parents by virtue of the mother giving birth to the minor child and the biological father in the absence of a court order indicating otherwise.  These rights and responsibilities can be equally shared between parents, like for instance in a marital relationship or it can be allocated and/or limited by legislation or court order as the case may be, where parents are separated.

The Effect of the Covid-19 Lockdown on Parental Rights and Responsibilities in Respect of Minor Children

Many parents, who are not living together, operate under a parenting plan, issued by way of a court order, where one parent holds primary care, and which may further set out what the parents’ duties and rights are in respect of a minor child. Parents are required in the ordinary course to operate strictly in terms of a parenting plan. The current Lockdown situation, however, presents a new challenge in that a situation may arise where a parent is unable to adhere to a parenting plan where for example; a father, exercised his right to contact immediately prior to the Lockdown, by picking up his child to spend time for the school holiday. As a result of the stringent Lockdown regulations, the father is unable to return the minor child to the primary caregiver. Another example, a mother is entitled, in terms of a parenting plan, to see her child for a week during the school holiday, thereby exercising her right to contact, but then, unfortunately, such period being interrupted by the Lockdown. What does the parent do in such a situation?

Where Parental Rights and Responsibilities is Regulated by way of Parenting Plan

In terms of the Directions issued in terms of regulation 10 of the Regulations under the Disaster Management Act of 2002 (“the Regulations”) specifically, paragraph 8.1 to 8.2 deals with family matters to be attended to during the Lockdown. In terms of these paragraphs, where a child needs to be moved from one parent to another in terms of the parenting plan, such an arrangement must be attended to.  In this situation, where a child needs to be moved, it would be advisable to keep the parenting plan at hand and contact an attorney, who provides an essential service, to find out how to deal with the situation, as moving of a minor child should only happen in exceptional circumstances by way of a court order. Importantly these regulations only deal with specific situations, with the above movement of the minor child being one of them. Other forms of rights, in respect of co-parenting, not mentioned in the regulation such as for example, supervised contact, may be limited as a result of the Lockdown -rather use alternative forms of communication. Where a dispute arises, and an application has been brought and falls due or needs to be brought afresh, such application must comply with the prevailing regulations.3 Speak to an attorney for further advice herein.

Where there is no Parenting Plan in place

Should there be no parenting plan in place, it would be advisable for the minor child to remain in the care of the parent during the Lockdown period even if such parent is not the primary caregiver. Should a dispute arise as a result, or the child is in danger of being neglected if not moved then the same process can be followed in terms of lodging an urgent court application as indicated above where a parenting plan is in place. Under no circumstance can a child be moved without obtaining a court order ordering such movement.

Conclusion

To our Courts, a child’s best interests are the overriding concern in all matters affecting the child. Where the safety or wellbeing of a child is in danger, an application must be brought in terms of the above regulation and the prevailing Children’s Act to ensure that the minor child’s best interest is being looked after.  It is prohibited for a child to be moved between houses or parents to move between houses in light of the current Covid-19 outbreak. 

Written by Hamlet Heneke, Professional Assistant, Attorney, Schoeman Law.