Guardianship and Custody under the Guardianship of Minors Amendment Act 2022

The Act introduces changes to the concepts of guardianship and custody which will assist parents in their conduct as well as legal practitioners in drafting applications. Starting point is the introduction of definitions of the terms custody and guardianship. In the past, reliance was placed on definitions from case law, now the definitions contained in the Act together with the definitions established through case law make it easier for legal practitioners to explain the terms to litigants and allow litigants to understand what it is they are asking for from the courts as relief.

WHAT IS CUSTODY?

Section 2 of the Act defines custody as

1. (a) legal custody arising by virtue of the parents being married to each other or by virtue of an order of separation or divorce; or
2. (b) actual custody, where the parents are not married to each other (without derogating from the common law position that minors born out of wedlock are in the custody of the mother);

This means there are two kinds of custody recognized by the law, legal custody being the kind which arises from the fact that parents are married to each other or custody granted to either parent by way of a court order.

Custody also refers to actual or physical custody of the minor child, that is where parents separate and one retains custody of the minor child by either moving out with the child or by remaining with the child when the other parent moves out.

WHAT IS GUARDIANSHIP?

Section 2 of the Act defined Guardianship as a legal right allowing either parent to manage a minor’s affairs including health, education needs, financial security or any welfare needs.

Put differently, custody is the physical control and principal responsibility of the minor child’s well-being and daily care, whilst guardianship comprises the full rights over the affairs of a minor including dealing with health, education needs, financial security or any welfare needs.

Upon separation of the parents, the custodial parent exercises full rights of guardianship. This creates two changes, the father no longer has to exercise guardianship rights in consultation with the mother and the non-custodial parent is required to obtain a court order in order to be consulted on any issue in connection with the guardianship of the minor child.

The act also introduces the concept of joint guardianship. This allows for the parents to share guardianship rights over the minor child where it is in the minor child’s best interests and in a manner which is in the minor child’s best interests.

WHO GET CUSTODY OF THE MINOR CHILD UPON SEPERATION?

Section 5 of the Act has been amended to the effect that either parent can get custody of the minor child upon separation. The mother of a minor child no longer automatically gets sole custody of the minor child.Where the non-custodial parent removes the minor child from the custody of the custodial parent, the custodial parent may approach the children’s court for an order declaring them the child’s sole custody. The court will use its discretion in granting the order or dismissing the application.