Access to minor children

Source: Family Law Service by Schäfer

“Access enables a person to see, and spend time with and enjoy the company of a child of whom he or she does not have custody.”

Where parents do not live together, access serves to promote a continuing parental relationship between the non-custodian parent and his or her child, but without displacing the discretion of the custodian parent to control the child’s day-to-day upbringing.

It is generally recognised that a child’s welfare is usually best promoted through access by the non-custodian parent, especially where there is already a developed parent–child relationship. But no one has an unassailable right of access to a child; the test is always what is in the child’s best interests.

However, once an access order is granted, it may be regarded as conferring an enforceable right of access upon the person who is not the child’s custodian and with which the latter is bound to comply.

Access after divorce

After divorce and in the absence of any order to the contrary, the non-custodian parent is prima facie entitled to reasonable access. No specific order need to be made to give effect to this entitlement and divorce orders are often silent on the question of access.

Enforcement of access

An access order is binding on both parents until varied or set aside by a court. Save in cases of grave emergency, the proper approach for a parent who is dissatisfied with such an order is to approach the High Court for a variation thereof. Any person who hinders or obstructs a person entitled to access commits the offence of contempt of court. Two avenues are open to an aggrieved party who wishes to institute contempt of court proceedings. First, he or she may lay a complaint with the police, in which event the matter will proceed as a criminal prosecution, should the state decide to prosecute. Second, he or she may apply directly to the High Court for the committal of the custodian parent for contempt. In both cases, it must be proved that the defaulting parent has acted willfully and mala fide.

The fact that a parent is found to be in contempt of court does not mean that the court will automatically enforce the order. The overriding consideration remains the child’s best interests.

Rescission or variation of an access order in terms of the Divorce Act

An access order made in terms of the Divorce Act may be rescinded or varied at any time if the court finds that there is sufficient reason therefor.