Access is the right of visitation to children by parents who are not living with them. Sometimes it is forgotten that the child also has this right – the right to see, and be with, both of his or her parents. When a custodial parent refuses contact by the other parent, he or she is not merely ‘punishing’ the other parent, they are also punishing the child. Sometimes contact may be refused in the best interests of the child.
When two parents are together, they both have control of, and access to, their children. When the marriage ends in divorce or separation and one parent has custody of the children, the power of that parent over the child is often abused to ‘get at’ the other parent. Or, the other parent may merely think that it is being abused.
The children’s act states that the other parent must have ‘reasonable’ contact. What is reasonable depends on the particular circumstances of the family, the ages and needs of the children – a lot of factors.
When Can Contact Be Refused?
There is no strict rule. Contact can only be refused in fairly extreme cases. Even where a parent is not ideal or responsible, the courts are slow to prevent contact – instead, controls are introduced such as limited or supervised access.
A custodian parent can – and must – refuse contact if the other parent arrives drunk or under the influence of drugs. Protection of the child is paramount, but custodians must not exaggerate the situation and use it to pursue their own agendas, such as the resentment and wish for vengeance that exists in some cases. Many mothers know this and make the necessary sacrifices, even though they are uncomfortable.
The right of contact, also known as “access”, is defined in section 1(1) of of the Children’s Act 38 of 2005 and means:
i. maintaining a personal relationship with the child; and
ii. if the child lives with someone else –
a. communication on a regular basis with the child in person including visiting the child or being visited by the child; or
b. communicating 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.
Section 18 provides that a person may have either full or specific parental rights and responsibilities in respect of a child. Furthermore, the parental rights and responsibilities a person may have in respect of the child include the responsibility and the right to maintain contact with the child.
If the unmarried father does not have a right of contact in terms of section 21 or in terms of a court order, he may still be able to acquire a right of contact in terms of an agreement with the mother. The agreement must be in the prescribed format and contain the prescribed particulars. Also, the agreement must be registered with the family advocate or made an order of the High Court or the children’s court on application by the parties to the agreement.
The family advocate or court will have to be satisfied that the agreement is in the best interests of the child. This requirement is in line with the Constitution which expressly provides that the interests of the child are of paramount importance. When giving effect to the best interests of the child standard, the court will consider:
• the nature of the relationship between the child and the parent;
• the attitude of the parent towards the child and
• towards the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the parent to provide for the needs of the child;
• the likely effect on the child of any separation from either parent; and
• the need of a child to maintain a connection with his or her family.
The agreement will be of no force and effect if it is not duly registered with the family advocate or made an order of the High court or children’s court.