Guardianship is a legal relationship a parent has with a child. A guardian has a duty to maintain and properly care for a child and has a right to make decisions about a child’s welfare.
When parents are marries, both parents are automatically joint guardians of their child. When parents are not married, the mother is the sole guardian of the child. The father of the child must be appointed a guardian of his child in one of the following ways:-
(i) Marry the natural mother
(ii) Apply to the Courts to be appointed a Guardian. It is important to note there is no automatic right to be appointed a guardian; rather it is merely a right to apply to be appointed.
(iii) Reach an agreement with the natural mother to be appointed a guardian. This agreement must be given effect to by the making of a Statutory Declaration.
(iv) Be appointed a testamentary guardian following the death of the mother of the child.
Custody means the right to the physical care and control of a child, or who the child will live with. When parents are married, both are joint custodians of their child. When parents are unmarried, then the mother is the automatic sole custodian of the child. When the court is making its decision about who should have custody of the child, the most important factor is the welfare of the child. Welfare includes the child’s religious, moral, intellectual, physical and social welfare.
Access refers to the time that a child or children spend with the parent who does not have the day to day care and control of the child and with whom the child does not primarily reside. Access permits a parent to meet with and/or communicate with a child.
Guardianship, Custody and Access are viewed as rights of a child and the Court will decide applications for guardianship, custody and access having regard to the best interests of the child, with the child’s welfare as the paramount consideration.
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