Guardianship Applications – Family Law


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What is guardianship?

Section 18 of the Children’s Act, Act 38 of 2005 (“the Act”) regulates guardianship of children. Under Section 18(3) of the Act, a guardian must protect the property of the child and assist the child in all legal, administrative or contractual matters. A person can apply for guardianship if they wish to acquire legal rights over a child. If you have guardianship of a specific minor child, you have the right to participate in important decisions affecting the child.

Anyone who has an interest in the development, care and well-being of a child can apply to a court for the right of legal guardianship over a child. In the event of such a request, the Court will take among others the following into consideration:

  • The best interests of the child;

  • The relationship between the child and the applicant;

  • The extent to which the applicant has played a role in contributing to the maintenance and care of the child;

  • Any other relevant factor.

The other legal question we often face is what if a parent wants sole guardianship of their minor child?

Only the High Court has jurisdiction to make an order declaring that a party who had guardianship of a minor child no longer has that right. For such a request to be successful, the Office of the Family Advocate must investigate to determine what would be in the best interests of the child. They will then provide us with a report that we will attach to our application.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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