Goodbye “Custodian”, hullo “Co-holder”

by John O'Leary

Most South Africans would, if they were asked to identify the prime cause of conflict between divorced parents, reply to the effect that “it is about which parent has custody of the child and about what access the other parent has to the child”.

Fundamentally they are, of course, right. This issue has always lain at the heart – in more ways than one – of partings between parents. But the approach changed with the Children’s Act of 2005, and the specifics continue to change as more provisions and regulations under that Act come into effect, most recently in April this year.

For instance, the Act no longer recognises the terminology that most South Africans use. “Custody” and “access” are no longer the terms in use. The new terms are “care” and “contact”, and a “parent” is now, legally, a “co-holder of parental responsibilities and rights”. The duties of a guardian are included in the parental responsibilities.

Central to the relationship between co-holders of parental responsibilities and rights is the Parenting Plan, which co-holders must attempt to agree on before seeking the intervention of a court.

Parenting Plans may cover where and with whom children will live, the maintenance of the children, schooling and religious upbringing, and contact between the children and any other person, including any co-holder.

In drawing up a Parenting Plan, the parties must seek the assistance of a Family Advocate, social worker, or psychologist or reach agreement through mediation (Walkers offers mediation services in preparing Parenting Plans.)

A parenting plan that was made an order of court can be changed by that court on application by either of the parents or by the child or someone acting on behalf of the child provided the child or person representing the child acts with the leave of the court.

In coming to a “major decision” affecting a child, a co-holder of parental responsibilities and rights must give due consideration to (i) the views and wishes of the child, bearing in mind the child’s age, maturity and stage of development, and (ii) views and wishes expressed by another co-holder. “Major decisions” are listed in the Act and include consent to marriage (by a child who is still a minor), consent to adoption, changes to the contact between the child and a co-holder, and any decision which is likely to significantly change the child’s living conditions, education, health, personal relations or general wellbeing.

These changes to the terminology are not simply cosmetic. They reflect a shift towards a consultative style of parenting after divorce. They also show how the trend towards using mediation to resolve disputes is gathering momentum.