Care, contact and guardianship: what is the difference?

Parents still walk into attorneys' offices asking for custody. The word has not existed in South African law for twenty years, and the concepts that replaced it are not a straight substitution.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

This matters practically rather than pedantically. A parent who believes they have "full custody" is often surprised to find they cannot take the child abroad, cannot get a passport, and cannot sell property registered in the child's name. Those are guardianship questions, and guardianship is usually shared.

What the Act uses instead

The Children's Act 38 of 2005 speaks of parental responsibilities and rights. Section 18 provides that a person may have full or specific parental responsibilities and rights in respect of a child, and identifies what they consist of:

• care
• contact
• guardianship
• the responsibility to maintain the child

Each is a separate thing, and a person can hold some without the others.

Care

Care is the closest thing to the old idea of custody, and it is considerably broader.

It covers providing the child with a suitable place to live, living conditions conducive to their health and development, and the necessary financial support; safeguarding and promoting their wellbeing; protecting them from maltreatment, abuse, neglect, degradation, discrimination and exploitation; respecting and protecting their dignity; guiding and directing their education and upbringing in a way appropriate to their age and development; and guiding their behaviour in a humane manner.

In everyday language, care is who the child lives with and who makes the day-to-day decisions. The common arrangement is that the child's primary residence is with one parent, with both retaining care responsibilities.

Contact

Contact is what used to be called access, and it means maintaining a personal relationship with the child, and communicating with them on a regular basis where the child lives with someone else. It includes visits, phone calls and messages.

Contact belongs to the child as much as to the parent. That framing matters when a parent is tempted to withhold contact because maintenance has not been paid. The two are separate, withholding contact is not a lawful response to non-payment, and the remedies for each are different. Our guide on what to do if maintenance is not being paid sets out the right route.

Guardianship

Guardianship is the one people underestimate, and it is the most consequential of the three.

A guardian must administer and safeguard the child's property and proprietary interests, assist or represent the child in administrative, contractual and other legal matters, and give or refuse consent where the law requires a guardian's consent.

The consents that require all guardians, unless a court orders otherwise, are the significant ones:

• the child's marriage
• the child's adoption
• the child's departure or removal from South Africa
• the child's application for a passport
• the alienation or encumbrance of immovable property registered in the child's name

That list is why the vocabulary matters. A parent with primary residence and day-to-day care still cannot obtain a passport for the child or take them out of the country without the other guardian's consent. Every December, families discover this at an airport.

Who has what, automatically

A mother of a child has full parental responsibilities and rights.

A father married to the mother has full parental responsibilities and rights.

An unmarried father acquires full parental responsibilities and rights in defined circumstances, broadly where he was living with the mother in a permanent life partnership at the time of the birth, or where he consents to be identified as the father, contributes or attempts in good faith to contribute to the child's upbringing, and contributes or attempts to contribute to maintenance for a reasonable period. Our guide on an unmarried father's rights deals with this in detail, because it is contested more often than any other question in this area.

Other people, including grandparents and step-parents, can acquire responsibilities and rights by agreement or by court order.

When consent cannot be obtained

Where one guardian withholds consent unreasonably, or cannot be found, the answer is not to proceed without it. It is to approach the High Court, which as upper guardian of all children can dispense with the consent or grant it in the other guardian's place.

That application is brought on the basis that the order is in the child's best interests, and it is what a parent should be doing months before a planned trip rather than days before. Courts deal with these routinely and will not be impressed by urgency created by the applicant's own delay.

Trying to circumvent a missing consent is worse than useless. Removing a child from South Africa without the required consent can amount to abduction, engaging the Hague Convention and criminal consequences, which is a vastly larger problem than the one being avoided.

Parenting plans

Where parents share responsibilities and rights and are experiencing difficulties, the Act contemplates a parenting plan recording how they will exercise them: residence, contact schedules, holidays, schooling, medical decisions, and how disputes will be resolved.

A parenting plan prepared with the assistance of a family advocate, social worker or psychologist, or a mediator, can be registered with the family advocate or made an order of court. Made an order, it is enforceable. Our guide on parenting plans covers what should go into one.

The value of a good plan is that it decides the recurring arguments in advance, in writing, at a time when both parents are able to think about the child rather than about each other.

What happens to guardianship when a parent dies

This is the question most parents never think about until they are making a will, and then get wrong.

A parent who is a guardian may appoint a guardian for the child in their will, to take over on their death. That appointment is worth making, but it is worth understanding what it does and does not do.

It does not override a surviving guardian. Where both parents hold guardianship and one dies, the survivor continues as guardian, and a testamentary appointment cannot displace them. The appointment takes effect where there is no surviving guardian, or in respect of the share of responsibilities and rights the deceased held.

It also does not appoint somebody to look after the child's money in the way most people imagine. Where a minor inherits, money is ordinarily paid to the Guardian's Fund administered by the Master rather than to the guardian directly, unless the will creates a trust or the Master directs otherwise. Families are routinely surprised by this, and a testamentary trust is the usual answer for anybody leaving assets to a minor. Our guide on testamentary trusts explains the structure.

Nominating a guardian, and separately providing for where the money goes, are two different jobs in the same document. A will that does the first and not the second leaves a guardian looking after a child whose inheritance they cannot readily access.

The standard that governs everything

Section 28(2) of the Constitution and the Children's Act both make the best interests of the child paramount in every matter concerning the child.

That is not a tie-breaker applied at the end. It is the question, and it displaces the parents' own claims. A court is not asking which parent deserves the child or which has behaved better. It is asking what arrangement serves this child, and the Act sets out a list of factors, including the child's age and stage of development, the nature of the relationship with each parent, the likely effect of any change, and, depending on the child's maturity, the child's own views.

Worked example

This example is illustrative. Nomsa and Peter divorce. The settlement agreement, made an order of court, records that the child's primary residence is with Nomsa, that Peter has contact every second weekend and half of school holidays, and that the parents retain joint guardianship.

Nomsa is offered a job in Namibia and plans to take the child.

What she has is care, including primary residence. What she does not have is unilateral authority to remove the child from South Africa, because that is a guardianship consent and Peter is a guardian. Nor can she obtain a passport for the child without him.

Her route is Peter's written consent, or, if he refuses, an application to the High Court for leave to relocate. That application is decided on the child's best interests, considering the genuineness of her reasons, the effect on the child's relationship with Peter, and what contact arrangements would be workable from Namibia. Our guide on relocating with a child without the other parent's consent deals with those applications.

If she simply takes the child, she has removed a child from the country without the consent of a guardian, and the consequences of that are of a different order entirely from the delay she was trying to avoid.