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Lockdown: Contact & Visitation Rights

If you are a parent to a minor child (under the age of 18) then this blog is for you, it speaks to your rights, as well as the rights of your child.

Although each situation is unique and contact arrangements will depend on your circumstances, it is your child’s right to have contact with both parents.

Lockdown is frustrating and constricting, not just in your professional life but also in your personal life. I am sure you have already heard the, “You are not seeing the kids, this is a national lockdown” speech. 

During the early stages of level 5 lockdown, the Minister of Social Development prohibited any movement of children between co-holders of parental responsibilities and rights. Stating that children must remain with the parent that they were with when the lockdown period began. This was to ensure that children are not exposed to possible infection.

This decision was challenged by a parent who brought an urgent application before the Gauteng High Court. When deciding, the judge stressed that this is uncharted territory and it was difficult to rule against a regulation that has been implemented to ensure all children’s health and safety from possible infection.

In this situation, the minor child was to stay where they were at the time of lockdown. This subsequently set a precedent, until the regulations were amended, the movement of minor children was prohibited.

As the nation went down a level of lockdown, regulations were relaxed. 

Currently, under level 3, a parent or caregiver may transport a minor child to the other parent if they are in possession of a:

  • Court order
  • Parental rights and responsibilities agreement
  • Parenting plan (registered with the Family Advocate)
  • Birth certificate which relates the parent to the minor child

Parents who do not have any of the above set in place are still permitted to exercise contact with their minor child.  

Furthermore, all minor children are equally entitled to exercise contact with both their parents. It would appear to be unjust to stop a minor child from exercising contact, due to the fact that a formal process which is out of their control has not been completed or pursued. 

Inter-provincial travel in order for parents to exercise contact is allowed. The parent or caregiver who has the minor child, will have to approach their local Magistrates Court and obtain a permit which is issued only by a magistrate.

In order to obtain a permit from your local Magistrates Court, you must have the following:

  • Divorce court order
  • Parental responsibilities and rights agreement, registered parenting plan, birth certificate or certified copy thereof
  • Reasons as to why the movement of the child is necessary, submitted in writing

Upon examination, it would appear that transport between different metropolitan areas and district municipalities have since relaxed even further, seeing as many children have been transported to school and back.

However, respective parents may only exercise contact on the condition that both parents have not come into contact with, or reasonably suspect to have come into contact, with someone known to have (or suspected to have) contracted COVID-19. This complicating factor includes, by extension, the people living in the household.

Should one parent refuse the other parent to exercise contact, it will have to be based on reasonable grounds and/or related to the possible exposure of the child to COVID-19 (which should be prevented). 

We appreciate that there are many ‘loopholes’ in the regulations that can be manipulated, however, we caution parents who refuse the other parent contact unjustifiably or unreasonably, as it may be used against you in the future. 

We are reminded that the purpose of the regulations is to minimise the risk and reduce the exposure of COVID-19.

In terms of the Children’s Act, and in the eyes of our Courts, everything parents do must be in the best interests of the minor child. All minor children’s parents must do the same and place their minor child’s health, safety and, most of all, their best interests first.

Understandably, it has been a very testing time for parents all over the nation. Many families have been deprived of special time with their loved ones, but this is a time to be patient and compassionate towards each other, and to follow the regulations that are in place.

It is not a time to cause upheaval and instability. It is during these times that we need to implement the fundamental legal principle of UBUNTU.

Parents need to appreciate that they both have equal rights and responsibilities towards their minor children, and to deprive the rights of the other parent is to deprive the rights of their minor child as well.

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