Denying custody due to failure to pay maintenance
Often times as a Family Law Mediator I receive calls or emails stating that access to children is being withheld from the one-party by the other because the first party has fallen behind on maintenance payments. Inevitably the first question is, “What is my right here?”
South African law states that Contact with minor children may not be withheld, even where there is a failure to pay maintenance. This may seem unfair to the party suffering the financial burden at that point in time, but it comes with good intent.
The defaulting parent is usually concerned with their PRR (Parental Rights and Responsibilities) being denied by the other – in the Right to Contact being denied due to the failure of the Duty (Responsibility) of Care or Maintenance.
What needs to be kept in mind here is that it is not always about the parents, As much as the aggrieved party currently suffering the financial burden may wish to withhold access to the children, the children have a legal right to contact that parent, and those rights are denied when parents withhold access to children.
I always tell parents to keep the children front-and-centre when dealing with disputes, because the children are the ones that suffer, not the adults – as much as they feel they’re hurting the other one.
Mediation can help here. We can work with both parties to reach an agreement that works for all and has a higher chance of being upheld, ultimately benefitting the children and preserving respectful, cordial relationships.