Access to children

A divorced parent who has not been awarded custody of his or her children has a right – and almost an obligation – to see them regularly. Unfortunately, this so-called right of access to the children of a broken marriage frequently results in disputes, usually as an extension of the matrimonial quarrel.

Often the court will simply stipulate that the parent who is not awarded custody should have ‘reasonable access’ to the children, leaving the timing and arrangements to the estranged couple. But even when the court makes no mention of access, the non-custodian parent is fully entitled to expect reasonable access to his or her children.

If there is likely to be a dispute, however, a parent should attempt to have his or her rights set out clearly. This can be done by setting out specific arrangements in a consent paper, which will become an order of court when the divorce is granted. In any event, it is better to set out the arrangements in writing once the parties have reached agreement on access to the children, in order to prevent further disputes as far as possible.

If there is no specific agreement, the parent who has custody of the children has the right to determine what access the other may have. However, he or she may not lay down unreasonable rules. The amount of access will depend on the circumstances of each case. For instance, where parents live within a few kilometers of each other and the children attend a day school, access might be for one day each weekend or at specified times during the week. If the parents stay far apart, the children could, for example, stay with the non-custodian parent for two weekends every month.

The court may well order the parents to take it in turns to have the children on public and religious holidays and to share school holidays where appropriate. Special arrangements should also be made for access on important occasions such as birthdays.

Unless there is good reason for limiting a parent’s rights of access, that parent is entitled to take the children away from the other parent’s supervision while he or she is exercising his or her right of access. If, for example, the father has the right to spend one day of each weekend in the company of his children, he is entitled to take them away from their mother’s home – provided he returns them to her at a reasonable hour.

REFUSING ACCESS A parent can be refused access to a child only if he or she is likely to harm the child’s development seriously. A habitual drunkard, for example, may be barred from seeing his or her children, or may be allowed to see them only in the presence of someone else.

Similarly, a person convicted of sexual offences against children, or of gross violence, will not be allowed to see them without safeguards, and may even be refused all access.

The fact that a child does not want to see the non-custodian parent is not a sufficient reason for refusing access to that parent. An attempt by either parent to alienate the child’s affection from the other parent or to undermine his or her authority is a good reason to apply for a variation of the court order.

CHANGING AN ORDER No court order need be regarded as permanent. A parent who considers an order to be wrong or unfair has the right to appeal. Furthermore, significant changes in the circumstances of either parent may be a good reason for applying to the court to vary its original custody order. A child-custody order normally continues until the child reaches the age of 21.

INTERDICT Where there is a danger that one parent may try to take the child out of the country, the court can be asked for an interdict – an order restraining that parent from carrying out his or her suspected intention. A parent wishing to apply for an interdict should approach an attorney. An interdict can be obtained at short notice and if the matter is sufficiently urgent, a judge can be requested at any hour of the day or night to grant the order.

SOURCE: ‘YOU AND YOUR RIGHTS’