Guardianship Care and Contact

Introduction
The Children’s Act (“the Act”) replaced the words “custody” and “access” with “care” and “contact”. The Act clearly defines what these terms mean. The term guardianship remains unchanged by the Act.

Guardianship
In terms of section 18(3) a parent or other person who acts as guardian of a child 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, departure or removal from the Republic, application for a passport and the alienation or encumbrance of any immovable property of the child.

Whenever more than one person has guardianship of a child, each one of them is competent, unless any other law or any order of a competent court specifies otherwise, to exercise independently, and without the consent of the other person, any right or responsibility arising from such guardianship.

Care
Section 1 of the Act defines care of a child as providing a child with:

• a suitable place to live, living conditions that are conducive to the child’s health, well-being and development;
• the necessary financial support, within the available means of the parent or care-giver;
• safeguarding and promoting the well-being of the child;
• protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
• respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of the Act;
• guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
• guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
• guiding the behaviour of the child in a humane manner;
• maintaining a sound relationship with the child;
• accommodating any special needs that the child may have; and
• generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

Contact
Section 1 of the Act defines contact as maintaining a personal relationship with the child; and, if the child lives with someone else, maintaining communication on a regular basis with the child in person, including visiting the child; or 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.

Primary residence
The term primary residence is not defined in the Act. However, this is the term most commonly used by the Family Advocate and the Court to describe the home of the parent, or other care-giver, with whom the child will primarily live, in other words, the home the child has as his or her main place of residence. This parent is often referred to as the “resident parent”. The non-resident parent then has a right to maintain contact with the child, which generally includes physical contact whereby the child spends a number of days with that parent, including over-night, and telephone or Skype contact.

What are your rights to care and contact?
There is no fixed “rule” regarding the care of and contact with children. Care and contact are awarded based on a number of factors, which will depend entirely on the specific circumstances of the matter. There has been a marked increase in the number of children who have what is referred to as “shared primary residence”, whereby the children spend equal amounts of time with each parent on a rotational basis. This is however, dependant on the age, maturity and gender of the children and the proximity of each parent’s home to each other.