Custody in lockdown update: One step forward for some parents and two steps back for others

Since the nationwide lockdown took effect on 26 March 2020, there has been much confusion regarding the right of contact with children.
Since the nationwide lockdown took effect on 26 March 2020, there has been much confusion regarding the right of contact with children.

Since the nationwide lockdown took effect on 26 March 2020, there's been much confusion regarding the right of contact with children.

We asked Deborah Di Siena, of Di Siena Attorneys, to provide some insight for concerned parents. This is what she has to share:

The initial directive was that it is in the best interests of the children that they remain with the parent who has primary care of the children and that the other parent exercise contact via electronic means. 

While we agree that the children’s best interests and their well-being should remain paramount, it is understandable that both parents and children may suffer as a result of the separation and that electronic contact may not be good enough, in particular if the lockdown is extended. 

On 7 April 2020, the Minister of Social Development amended certain regulations regarding the movement of children during lockdown.  

In terms of the amended regulations, parents in possession of a court order, which regulates the parties’ contact with the children or those who are in possession of either a parental rights and responsibilities agreement or parenting plan, registered with the Family Advocate, may exercise contact with their children.

This is subject to the condition that the children may not move to a household where any person therein is known to have or reasonably suspected to have contracted Covid-19 or has come into contact with any person know to have or reasonably suspected to have contracted Covid-19.

While this is great new for some, it is prejudicial to those parents who do not have a court order or agreement regulating their contact.

This could apply, for example, to parents who are mid-divorce or were never married and don’t have an agreement in place. 

The lockdown should be uplifted in 8 days so while the courts remain open for all urgent matters and matters involving children and despite the prejudice suffered by certain parents, a parent will face difficulties in the event that they approach the court on the basis that they wish to exercise contact during the last phase of the lockdown.

Our courts, would in our view, not entertain any matter which involves a parent trying to have contact over the next 8 days.

However, should any children be experiencing trauma as a result of the separation or if a child is being neglected or if they are in danger, then we would suggest immediately proceeding to court.

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  • In the event that the lockdown is extended for a substantial period and the regulations are not further amended to cater for parents without court orders and agreement, then those parents should, if it is in the best interests of the children, consider approaching to court on an urgent basis for an order regulating their contact with the children on an interim basis until lockdown has been lifted. 

    However, until the regulations are amended or a court order or agreement is in place, parents should abide by the regulations to avoid imprisonment and/or fines.

    Compiled for Parent 24 by Anneline Hlangani

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