Assignment of care and guardianship by order of court
Not only biological parents may have care and guardianship rights over a minor child. It sometimes happens, where a third party, who is interested in the care and well-being of a minor child, wishes to be appointed as a guardian to the minor child and have rights of contact etc. An example of an interested third party could be, and aunt, grandparent, or a stepparent, or any other person having an interest in the care, well-being and development of a child. In such a case, the interested party, would have to apply to Court for an order assigning rights of care and guardianship over him or her.
In this regard section 23 and 24 of the Children’s Act come into operation.
“23 Assignment of contact and care to interested person by order of court
(1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary-
(a) contact with the child; or
(b) care of the child.
(2) When considering an application contemplated in subsection (1), the court must take into account- (a) the best interests of the child; (b) the relationship between the applicant and the child, and any other relevant person and the child; (c) the degree of commitment that the applicant has shown towards the child; (d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and (e) any other fact that should, in the opinion of the court, be taken into account.
(3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court- (a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and (b) may suspend the first-mentioned application on any conditions it may determine.
(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.”
“24 Assignment of guardianship by order of court
(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.
(2) When considering an application contemplated in subsection (1), the court must take into account-
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other relevant person and the child; and
(c) any other fact that should, in the opinion of the court, be taken into account.
(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.”
The section is self-explanatory. What is interesting about the section is the interested third party should apply to the High Court. In other words he or she may not apply to the children’s Court.
Example of a Notice of Motion for the Assignment of Guardianship Rights
Below is an example of an Application where interested third parties applies to be assisgned with rights of care and guardianship.
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN Case no.:
In the matter between:
APPLICANT 1 (First Applicant)
APPLICANT 2 (Second Applicant)
APPLICANT 3 (Third Applicant)
RESONDENT 1 (Respondent)
NOTICE OF MOTION
TAKE NOTICE that the Applicants intends to make an Application to the above Honourable Court on ___________________ at 10:00 or as soon thereafter as Counsel may be heard for an Order in the following terms:
- Pending the finalisation of the Rule Nisi in clause (2) below:
- the minor child ___________________ (hereafter referred to as “the minor child”), born on _____________________ shall remain in the primary care of the Applicants; and
- the Respondent shall have contact to the minor child as provided for in clause 2.3 to 2.4 (both inclusive) below.
- That a Rule Nisi be issued, calling upon the Respondent to appear before Court on the first available date, on the Semi – Urgent Roll, in order to show cause why a final Order should not be granted in the following terms:-
- That the minor child shall remain in the primary care of the Applicants and they shall be his primary caregivers;
- That the parental responsibilities and rights of contact, care and guardianship over the minor child are assigned to the Applicants as provided for in sections 23 and 24 of the Children’s Act 38 of 2005 (the Children’s Act);
- The Respondent shall exercise the parental responsibilities and rights of contact and care over the minor child as follows:
- Every alternative weekend, from 17:00 the Friday and return him to the Applicants’ care at 17:00 the Sunday;
- Reasonable telephonic contact with the minor child on the days he does not exercise contact;
- Half of all long school holidays and alternate short school holidays. For this purpose, the December/January and the June/July holidays shall be deemed to be long school holidays and the other holidays as short holidays. The December/January holiday shall be split at 14:00 the 30th of December each year;
- The Applicants and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
- Both Eids;
- Islamic Holy Days;
- The minor child’s birthday;
- Father’s day; and
- The parties’ birthday.
- Notwithstanding the above contact rights the parties may have, the parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the parties;
- The parties shall advise the other party immediately of any situation that may arise which relates to the minor child’s best interests and wellbeing. This includes aspects of the minor child’s health and education;
- The parties shall make joint decisions about the following aspects of the minor child’s life:
- Major decisions about the minor child’s schooling and tertiary education;
- Major decisions about the minor child’s physical care, mental health care and medical care;
- Major decisions about the minor child’s religious and spiritual upbringing;
- Decisions about the minor child’s residence both within and outside the Cape Peninsula;
- Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on his well-being; and
- Decisions which affect the minor child’s every day care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.
- Before approaching a Court regarding future disputes regarding the Parties’ parental responsibilities and rights or the variation thereof, the parties must first attempt to resolve the matter via mediation.
- The Office of the Family Advocate is to investigate and provide a report as to the best interests of the minor child in relation to the relief sought in the Rule Nisi, within 10 (ten) days of the return date;
- The Respondent is to pay the costs of this Application, only in the event he opposes it; and
- Further and/or alternative relief.