Making decisions with the other parent regarding the children
Because more than one person may hold parental responsibilities and rights in respect of the same child, each of the co-holders may act without the consent of the other. This will be in circumstances where the child’s primary residence is with a specific parent, who is then entitled to make decisions about the day-to-day care of the child.
Before a person holding parental responsibilities and rights in respect of a child takes or even contemplates any decision that is likely to significantly change or have an adverse effect on the child’s well-being, living conditions, education, health, or personal relations with a parent or family member, that person must consider any views and wishes expressed by the child, bearing in mind their age, maturity and stage of development. Two major decisions where holders of parental responsibilities and rights must consider the views of others would be to do with schooling and religion.
Decisions about schooling
The issue of parents not consulting each other before deciding to change the child’s school has come before our courts in the past. In one matter, the court had to examine the extent to which the co-holders of parental responsibilities and rights could exercise their responsibilities and rights independently from one another. In this case, the court dealt with the question of whether the mother of a child, with whom the child was living, should have consulted the father prior to enrolling the child in another school. The court found that the choice of school was not something that would have a significant adverse effect on the father’s exercise of his parental responsibilities and rights. The court noted that even if there had been a duty to consult, the mother would not have been bound to give effect to the father’s views and wishes.
In another matter, the mother decided to put the children in a new school without consulting the father. The parents were embroiled in divorce proceedings. At the time, the children were primarily resident with the mother and the father had reasonable contact. The eldest child was happy at the current school, and the youngest child attended a day care in the same area. When the new school year commenced, it came to the attention of the father that the mother had, without informing or consulting him, removed the eldest child from the school and had not enrolled the youngest child either. The question before the court was whether, notwithstanding the father’s parental rights, the fact that the children were removed from one school to another was in their best interests. There was clear evidence that the children were happy and content in their original environment, and there was no objective evidence to suggest that their removal was in their best interests. The mother’s actions were therefore in contravention of the law, as they were clearly not justified. By moving them, the mother had disturbed the status quo. She was ordered to immediately re-enroll the children at their former schools.
Decisions about religion
Today, parental authority is concerned more with parental responsibilities and duties than with parental rights and powers. The question of religion in the family has been dealt with in a few court cases over the years. In one case, the custodian parent applied for an interdict to restrict the children’s involvement in certain religious practices while in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict preventing the children from attending Catholic masses. The court held that the custodian was entitled and required to direct the daily lives of the children, and that educational, religious and secular activities fell within that duty. However, the court ruled that no parent can dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.
In another case, the court refused to incorporate into a settlement agreement a provision that stated that both parents undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of children, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interests of the child as it did not afford him the freedom of religion that he was entitled to.
Refusal to allow the other parent to exercise parental responsibilities and rights
A parent should never alienate a child from the other parent. The Act contains certain provisions that aim to prevent one parent from frustrating the exercise of responsibilities and rights by the other parent. Any parent who has care of a child and refuses to allow the other parent to exercise his/her responsibilities and rights contrary to a court order or properly concluded parental responsibilities and rights agreement is guilty of an offence, and will be liable on conviction to a fine or to imprisonment for a period not exceeding one year. In addition, the parent with whom the child lives must notify the other parent in writing of any change to his/her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.
Threatening to lay criminal charges will definitely make a parent cautious about putting barriers in the way of the other parent. However, this is in fact a sledgehammer approach, because the arrest and possible detention of the primary caregiver will not be in the best interests of the child. Another concern is that the parent blocking contact may be doing so with good reason, for example if he/she fears that the other parent may be abusive or has evidence that the other parent abuses alcohol or drugs while the child is in his/her care.
Before a person holding parental responsibilities and rights in respect of a child takes or even contemplates any decision that is likely to significantly change or have an adverse effect on the child’s well-being, living conditions, education, health, or personal relations with a parent or family member, that person must consider any views and wishes expressed by the child, bearing in mind their age, maturity and stage of development. Two major decisions where holders of parental responsibilities and rights must consider the views of others would be to do with schooling and religion.
Decisions about schooling
The issue of parents not consulting each other before deciding to change the child’s school has come before our courts in the past. In one matter, the court had to examine the extent to which the co-holders of parental responsibilities and rights could exercise their responsibilities and rights independently from one another. In this case, the court dealt with the question of whether the mother of a child, with whom the child was living, should have consulted the father prior to enrolling the child in another school. The court found that the choice of school was not something that would have a significant adverse effect on the father’s exercise of his parental responsibilities and rights. The court noted that even if there had been a duty to consult, the mother would not have been bound to give effect to the father’s views and wishes.
In another matter, the mother decided to put the children in a new school without consulting the father. The parents were embroiled in divorce proceedings. At the time, the children were primarily resident with the mother and the father had reasonable contact. The eldest child was happy at the current school, and the youngest child attended a day care in the same area. When the new school year commenced, it came to the attention of the father that the mother had, without informing or consulting him, removed the eldest child from the school and had not enrolled the youngest child either. The question before the court was whether, notwithstanding the father’s parental rights, the fact that the children were removed from one school to another was in their best interests. There was clear evidence that the children were happy and content in their original environment, and there was no objective evidence to suggest that their removal was in their best interests. The mother’s actions were therefore in contravention of the law, as they were clearly not justified. By moving them, the mother had disturbed the status quo. She was ordered to immediately re-enroll the children at their former schools.
Decisions about religion
Today, parental authority is concerned more with parental responsibilities and duties than with parental rights and powers. The question of religion in the family has been dealt with in a few court cases over the years. In one case, the custodian parent applied for an interdict to restrict the children’s involvement in certain religious practices while in the non-custodian parent’s care. The custodian parent was from the Anglican denomination and the non-custodian parent from the Roman Catholic denomination. The custodian parent sought an interdict preventing the children from attending Catholic masses. The court held that the custodian was entitled and required to direct the daily lives of the children, and that educational, religious and secular activities fell within that duty. However, the court ruled that no parent can dictate what religion, if any, their children eventually adopt, but each parent is entitled to provide religious instruction. The application was accordingly dismissed.
In another case, the court refused to incorporate into a settlement agreement a provision that stated that both parents undertook to educate the child in the Apostolic Faith Church. The court, being the upper guardian in matters involving the best interests of children, has extremely wide powers in establishing what such interests are. It was held that the clause was not in the best interests of the child as it did not afford him the freedom of religion that he was entitled to.
Refusal to allow the other parent to exercise parental responsibilities and rights
A parent should never alienate a child from the other parent. The Act contains certain provisions that aim to prevent one parent from frustrating the exercise of responsibilities and rights by the other parent. Any parent who has care of a child and refuses to allow the other parent to exercise his/her responsibilities and rights contrary to a court order or properly concluded parental responsibilities and rights agreement is guilty of an offence, and will be liable on conviction to a fine or to imprisonment for a period not exceeding one year. In addition, the parent with whom the child lives must notify the other parent in writing of any change to his/her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.
Threatening to lay criminal charges will definitely make a parent cautious about putting barriers in the way of the other parent. However, this is in fact a sledgehammer approach, because the arrest and possible detention of the primary caregiver will not be in the best interests of the child. Another concern is that the parent blocking contact may be doing so with good reason, for example if he/she fears that the other parent may be abusive or has evidence that the other parent abuses alcohol or drugs while the child is in his/her care.
