What is guardianship? Is it the same as custody?

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Custody is not the same as guardianship. When a couple with children divorces, South African courts normally grant guardianship to both parents as part of the divorce settlement. Guardianship is an adult’s right and responsibility to:

  • Manage a child’s interests
  • Manage any assets or financial aspects of the child’s life
  • Assist the child in legal or contractual situations
  • Give consent to the child’s medical treatment, marriage or adoption
  • Give consent for the child to travel out of South Africa

In certain very specific circumstances, the court may grant sole guardianship to one parent or to someone who is not the biological parent.

To provide someone with guardianship rights, all legal guardians of the child need to consent. In most cases this includes both biological parents, unless the guardianship rights of one parent have been removed, or one parent has passed away. An application for guardianship is a relatively easy process if all the parties involved consent to the application. Affidavits and a settlement agreement are drafted by us for all parties to sign. The court papers must demonstrate that the guardianship application is in the child’s best interests.

However, if one or more of the legal guardians do not consent to the application, the guardianship application will be launched on an opposed basis. This can be costly and time-consuming, as the matter is then investigated by the Family Advocate and in some cases private social workers are appointed. The application will be successful only on the recommendation of the Family Advocate and/or private social worker.

A guardianship application should be made in the High Court with legal representation. If you cannot afford an attorney, you can approach the Children’s Court on your own, where a presiding officer can be appointed to investigate the matter and make an order regarding child care and contact.

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Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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