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If you can’t pay maintenance, can you be prevented from seeing your child? Child maintenance and visitation rights or custody rights are issues that many parents have to deal with, but they are not actually connected. Scorpion Legal Protection explains why.
Many people assume that if a parent is not able to pay maintenance for their child, that the other parent/guardian can refuse them visitation rights. This is not true. Maintenance and visitation rights are not the same thing – in fact they are even dealt with in separate courts (maintenance court vs children’s court). Both of the biological parents or legal guardians have full parental rights and responsibilities towards the child, unless there is a court order stating otherwise.
No. If you do, you will be breaking the law by violating your maintenance order. You have a legal duty to support your child – according to the Maintenance Act as well as the Children’s Act. But the person preventing you from seeing your child is also violating the law. You are entitled to see your child whether you are paying maintenance or not, and your child is entitled to maintenance whether you see them or not (ie, even if you never want to see your child, you still have a responsibility to provide maintenance for the child).
You must approach the Children’s Court for help. The Clerk of the Children’s Court will help you make an application for a parenting plan in terms of Section 33 of the Children’s Act (if you do not already have one in place). This sets down the terms of access to the child.
If you already have a parenting plan in place, you can have it made an order of court. This means a parent who does not stick to the agreement can be held in contempt of court. This is not the ideal solution, as legal disputes are not in the best interests of the child, and the courts may look to see that you have tried to resolve matters between each other before coming to them for help.
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* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 31 August 2022
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