My husband is not paying maintenance, may I refuse him seeing the kids?

As Attorneys, we often get this question.  Although it would seem fair that while the father is not contributing to the child’s monthly expenses, he should not be entitled to see the minor child, the answer is unfortunately:  No, you cannot refuse him access to the kids.

Section 18 of the Children’s Act 38 of 2005, as amended (Children’s Act) gives effect to parental responsibilities and rights and this includes the right to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the maintenance of the child.

The Children’s Act also regulates how a parent’s rights and responsibilities may be terminated, extended, suspended or restricted.  What is imperative, is to take note that the court, when terminating, extending, suspending or restricting a parent’s rights and responsibilities, will take the following aspects into consideration when ordering so:

 “the best interest of the child, the relationship between the child and the person whose parental responsibilities and rights are being challenged, the degree of commitment that the person has shown towards the child and any other fact that should, in the opinion of the court be taken into consideration.

In the event that you, without the aforementioned court order, refuse the father access to his child or you refuse the father to exercise his parental responsibilities and rights towards the child, you will be guilty of an offence and liable on conviction to a fine or imprisonment.

Maintenance towards a minor child is regulated by the Maintenance Act 99 of 1998, as amended (the maintenance act).   In terms of Section 15, it is the duty of parents to jointly support their children.  The duty of support consists of providing the child with food, clothing, accommodation, medical care and education and this obligation on parents will last until the child is self-supporting, regardless of the age of the child.

Should the farther not pay maintenance, it is imperative that you obtain a maintenance order from your local Magistrate’s Court, if you are not already in possession of such an order.  A maintenance order will ensure that the father of the child, irrespective of whether the child is born in or out of wedlock or is born of a first or subsequent marriage, complies with his duty to support his child/ren until they become self-supporting.

The documentation that you will require when applying for a maintenance order are as follows:

1. A maintenance form Form A [J101];
2. Your ID, passport, driver’s licence and/or immigration permit;
3. The child/ren’s birth certificates;
4. Three months bank statements;
5. Three months proof of income (payslips) or signed letter from the employer confirming your income;
6. Physical or work address of the father;
7. List of your income and expenditure (water and lights bill, till slips for groceries, school expenses, rental contract, medical and travel receipts, clothing accounts, etc;
8. Full name and ID number of the father;
9. A copy of the divorce order, if you were divorced.

Once the order is granted, and the father of the child is in default of the maintenance order, you must go to the court and inform the maintenance officer thereof.  The Court is then authorised to issue a warrant of execution against the father’s assets or make an order for the attachment of any emoluments which will authorise his employer to make payment on his behalf.    A father might also be found guilty of an offence and may be imprisoned.

Take note that the Children’s Act makes provision for co-holders or parental responsibilities and rights in respect of minor children to agree on a parenting plan to determine the exercise of their respective responsibilities and rights of the child.  The parenting plan will include the following:

1. where the child is to live;
2. the maintenance of the child;
3. the contact between the child and the parties;
4. the schooling and religious upbringing of the child.

The parenting plan will be made an order of court and may assist with maintenance applications. Contact our firm to assist you in drafting a maintenance plan.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)