Guardianship who will look after your children when you pass away?
People don’t usually want to think about death, but as a parent, what will happen to your children after you passed away? As a parent you will have to take steps now to secure your children’s future care.
The following scenario happens all too often. Judy and Mark divorced after having three children. Mark had an affair and left Judy for someone else. Judy is now in a relationship with Ben and she and the children lived with Ben for the past 5 years in Cape Town. Ben is an awesome father and has taken care of the children as if they were his own. Mark paid little maintenance and did not show much interest in the children for the past few years. Judy then passes away. Within a few weeks after her death Mark appeared on the scene demanding that children live with him and his new wife in Johannesburg. Ben is devastated as loves the children and the children are devastated too.
The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.
Section 27 of the Children’s Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don’t have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child’s expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.
So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.
Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child’s health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.
In terms of Section 31 of the Children’s Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.
Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.
If you die and the other parent is also no longer alive the grandparents on either side may apply for the child’s care or guardianship.
Family and Divorce Law Attorney
Abrahams and Gross Inc.