Children’s Bill: Concerns on custody refuse to go away

THE new, revised version of the Children’s Status Bill continues to provoke concern about shared custody and the guardianship of children born outside of marriage.

The Legal Assistance Centre (LAC), which last year was instrumental in lobbying for the bill to be revised, yesterday said it did not believe that it was in the best of interest of a child for unmarried parents to share the custody and guardianship of their child. “We believe that any parent who is in fact exercising sole custodial control over a child should be treated as the sole custodian of the child, even if the other parent has an equal right to custody in theory which has not actually been exercised,” said the LAC.Although acknowledging that the revised bill was an improvement on the previous version, the LAC’s Gender Research and Advocacy Project said it would still recommend that sole custody be awarded to the mother as a starting point.This is based on the biological factors of giving birth and breast-feeding and the fact that most children born outside of marriage are cared for in practice by their mothers, the LAC said.The LAC suggests the automatic rights of access by all fathers and a simple, inexpensive procedure through which fathers can obtain custody rights through the court if deemed in the child’s best interest.The organisation said it was concerned that a parent who had never laid eyes on a child would automatically become a child’s sole custodian upon the death of the other parent.If there is no custodian and guardian, an interested person could apply to a children’s court for appointment as the child’s guardian, the LAC suggests.”We appeal to Parliament to continue fine-tuning this key piece of legislation before it is passed,” the LAC’s Co-ordinator of its Gender Research and Advocacy Project said.The LAC said it also feared that equal rights to custody would have implications for mothers who cared for the children and sought maintenance from the father.Fathers might try to take over the care of children to avoid paying maintenance.”Some unmarried mothers and fathers will probably use their theoretical right to custody as a bargaining chip to control the other parent by threatening to take away the child or threaten to go to court and seek sole custody if they do not get their way on issues of conflict.This concern is particularly worrying in light of the context of widespread domestic violence,” said the LAC.The LAC has however expressed full support for the inheritance provisions which would place children born outside marriage in exactly the same position as all other children.Where a child was conceived as a result of a proven rape, the rapist has no right to inherit intestate from the child, but the child may inherit intestate from the perpetrator.From its analysis of the bill, the LAC noted that it did not appear that a rapist was excluded from exercising parental rights (custody and guardianship) over a child born as a result of rape and that this was disconcerting.”We believe that any parent who is in fact exercising sole custodial control over a child should be treated as the sole custodian of the child, even if the other parent has an equal right to custody in theory which has not actually been exercised,” said the LAC.Although acknowledging that the revised bill was an improvement on the previous version, the LAC’s Gender Research and Advocacy Project said it would still recommend that sole custody be awarded to the mother as a starting point.This is based on the biological factors of giving birth and breast-feeding and the fact that most children born outside of marriage are cared for in practice by their mothers, the LAC said.The LAC suggests the automatic rights of access by all fathers and a simple, inexpensive procedure through which fathers can obtain custody rights through the court if deemed in the child’s best interest.The organisation said it was concerned that a parent who had never laid eyes on a child would automatically become a child’s sole custodian upon the death of the other parent.If there is no custodian and guardian, an interested person could apply to a children’s court for appointment as the child’s guardian, the LAC suggests.”We appeal to Parliament to continue fine-tuning this key piece of legislation before it is passed,” the LAC’s Co-ordinator of its Gender Research and Advocacy Project said.The LAC said it also feared that equal rights to custody would have implications for mothers who cared for the children and sought maintenance from the father.Fathers might try to take over the care of children to avoid paying maintenance.”Some unmarried mothers and fathers will probably use their theoretical right to custody as a bargaining chip to control the other parent by threatening to take away the child or threaten to go to court and seek sole custody if they do not get their way on issues of conflict.This concern is particularly worrying in light of the context of widespread domestic violence,” said the LAC.The LAC has however expressed full support for the inheritance provisions which would place children born outside marriage in exactly the same position as all other children.Where a child was conceived as a result of a proven rape, the rapist has no right to inherit intestate from the child, but the child may inherit intestate from the perpetrator.From its analysis of the bill, the LAC noted that it did not appear that a rapist was excluded from exercising parental rights (custody and guardianship) over a child born as a result of rape and that this was disconcerting.