17 May 2023

Joint custody on the basis of acknowledgement from 2023

By Marcella Verwoerd

In practice, a frequent question is whether the other parent also has custody. The answer to this question depends in part on when the acknowledgement took place.

In practice, a frequent question is whether the other parent also has custody. The answer to this question depends in part on when the acknowledgement took place. In fact, the law has changed with effect from 1 January 2023. As a result, the acknowledger of a child is also entrusted with parental authority on the basis of the acknowledgement. Read on for more information about joint custody on the basis of acknowledgement.

What does having custody mean?

Children are under custody. Obtaining custody is important because it makes you the child’s legal representative. The person with parental authority is responsible for making important decisions for the child. Examples include decisions or joint decisions on which medical treatments a child will or will not undergo and on the use of medication. Other important decisions are choice of school, place of residence, vaccinations, trips abroad and applying for identity documents.

Situation before and after 1 January 2023

Until 1 January 2023, a partner who did acknowledge a child was not yet entrusted with joint custody. The acknowledger had to apply separately to the court for custody after acknowledgement. From 1 January 2023, the main rule is that a partner who acknowledges a child after 1 January 2023 will also be entrusted with custody. This main rule applies in the absence of any of the grounds for exception. Exceptions may arise, for example, in a situation where two people already have custody of the child at the time of acknowledgement or if the mother and the acknowledger jointly indicate at the time of acknowledgement that only the mother has custody.

Possible consequences of the new law

Possible consequences of this new law could be that a mother does not consent to the acknowledgement of the child because she does not wish to exercise custody together with the acknowledger.

If no agreement is reached, in the sense that both parents declare at the time of acknowledgement that only the mother will continue to have custody, the other parent is forced to initiate court proceedings.The other parent can then ask the court to give the parent substitute permission to acknowledge the child. This still allows the acknowledger to acknowledge the child.

However, if the court gives permission for the acknowledgement of a child, custody or joint custody of the child does not automatically follow.The other parent will have to apply to the court for this separately. The application concerning recognition and the application concerning custody, however, can both take place in the same procedure.

In conclusion

Do you need the assistance of a specialised mediator or family law lawyer to obtain acknowledgement, custody or joint custody? GMW advocaten employ specialised mediators and lawyers who will be happy to assist you. If you have further questions or would like to make an appointment, please do not hesitate to contact me.

Marcella Verwoerd

Marcella Verwoerd

Lawyer

Marcella Verwoerd is a specialist in the area of family law, whereby she particularly deals with international divorces and separations.

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