What Happens If a Parent Refuses Contact With Their Child?
When parents separate or divorce, one of the most difficult issues they may face is contact with their children.
In some cases, parents are able to agree on when and how a child will spend time with each parent. In others, disagreements can become serious, with one parent refusing to allow the other parent to see, speak to or spend time with the child.
But what does South African law say when a parent refuses contact?
The starting point is that the best interests of the child are paramount in every matter concerning the child. The Children’s Act 38 of 2005 recognises contact with a child as part of parental responsibilities and rights, while also requiring the child’s individual circumstances and wellbeing to be considered.
If you are being prevented from having contact with your child, or you have concerns about whether contact with the other parent is in your child’s best interests, it is important to understand your legal position before taking action.
What Does "Contact" Mean Under South African Law?
The Children’s Act 38 of 2005 does not limit contact to physical visits.
Contact can include maintaining a personal relationship with a child and, where the child lives with someone else, communicating with the child regularly. This may include visiting the child, having the child visit the parent, speaking by telephone or communicating electronically.
Section 18 of the Children’s Act specifically recognises the responsibility and right to maintain contact with a child as one of the parental responsibilities and rights that a person may have.
This means that contact can involve much more than simply seeing a child every second weekend. Depending on the circumstances and the arrangements in place, it may include telephone calls, video calls, messages, school holidays, birthdays and other meaningful forms of communication.
Can a Parent Simply Refuse Contact?
The answer depends on the circumstances.
If there is already a court order or a parental responsibilities and rights agreement regulating contact, a parent cannot simply disregard that arrangement because they are unhappy with the other parent.
Section 35 of the Children’s Act deals specifically with the refusal of access or the refusal to allow another person to exercise parental responsibilities and rights. Where a person who has care or custody of a child, contrary to a court order or qualifying parental responsibilities and rights agreement, prevents another person from exercising their contact or parental responsibilities and rights, this can constitute an offence.
The Act provides for a fine or imprisonment for a period not exceeding one year upon conviction.
It is therefore important to distinguish between:
- a disagreement where no formal contact arrangement exists; and
- the deliberate refusal to comply with an existing court order or qualifying agreement.
The legal consequences can be significantly different.
What If There Is Already a Court Order?
If a court has made an order regulating contact, both parents are expected to comply with that order.
For example, a court order may provide that a parent has contact:
On alternate weekends
During specified school holidays
On certain public holidays
On birthdays or special occasions
Through telephone or electronic communication
If the parent with whom the child lives repeatedly prevents the other parent from exercising contact provided for in the order, the affected parent should obtain legal advice about the appropriate remedy.
Importantly, parents should not attempt to enforce contact through confrontation, threats or self-help measures. A parent should not, for example, simply arrive at the other parent’s home and attempt to take the child because they believe they are entitled to contact.
Where a court order is being breached, the appropriate legal process should be followed.
What If There Is No Court Order?
This is where the situation can become more complicated.
Not every family has a court order regulating contact. Parents may have an informal arrangement, a written agreement or no arrangement at all.
Where parents cannot agree about the exercise of their parental responsibilities and rights, they may consider approaching the Office of the Family Advocate.
The Family Advocate assists parents with disputes relating to care, contact and guardianship. The Family Advocate may assist parents in reaching an agreement and, where appropriate, help them develop a parenting plan.
The Office of the Family Advocate states that its services are provided to the public free of charge.
Where an agreement is reached, a parenting plan can provide greater certainty about arrangements for the child.
What Is a Parenting Plan?
A parenting plan is an agreement that deals with how parents will exercise their parental responsibilities and rights.
Depending on the circumstances, it can address matters such as:
Where the child will live
Contact between the child and each parent
Maintenance
Schooling
Religious upbringing
Other matters relating to the child's care and upbringing
The Children’s Act provides for parenting plans and sets out formal requirements for them.
A parenting plan may be registered with the Family Advocate or made an order of court, depending on the circumstances and the applicable legal requirements.
A properly documented arrangement can help reduce uncertainty and minimise future conflict between parents.
What If the Child Says They Do Not Want to See the Other Parent?
This is a particularly sensitive situation.
A parent should not automatically assume that a child’s reluctance to have contact means that contact should simply stop.
At the same time, a child’s views cannot necessarily be ignored.
Section 10 of the Children’s Act provides that every child who is of such an age, maturity and stage of development that they are able to participate in a matter concerning them has the right to participate appropriately, and their views must be given due consideration.
The child’s age, maturity, circumstances and reasons for expressing a particular view are important.
For example, a child’s reluctance may arise from:
- ordinary adjustment difficulties following a separation;
- conflict between the parents;
- influence from one parent or another person;
- fear or anxiety;
- an unpleasant experience during previous contact; or
- genuine concerns about the child’s safety or wellbeing.
The circumstances need to be properly assessed rather than assuming that either parent is automatically at fault.
What If There Are Safety Concerns?
There are circumstances in which contact may genuinely need to be restricted, supervised or otherwise regulated.
The Children’s Act requires the best interests of the child to be the paramount consideration. Among the factors that may be relevant are the child’s physical and emotional security, the child’s development, the relationship between the child and the parents, and the need to protect the child from physical or psychological harm.
Concerns involving abuse, neglect, violence, substance abuse or other potentially harmful circumstances should therefore be treated seriously.
A parent who genuinely believes that contact may place a child at risk should obtain appropriate legal advice rather than simply relying on an informal decision to permanently stop contact.
Depending on the circumstances, urgent legal intervention may be appropriate.
Does Failure to Pay Maintenance Mean Contact Can Be Stopped?
No.
A common misconception is that a parent who does not pay maintenance automatically loses their right to contact with their child.
The Department of Justice specifically states that a parent is not precluded from exercising contact merely because they have failed to pay maintenance.
Maintenance and contact are separate legal issues.
A parent who is not receiving maintenance should pursue the appropriate maintenance remedy rather than using the child’s contact with the other parent as a means of recovering maintenance.
Likewise, a parent should not assume that paying maintenance automatically guarantees unrestricted contact.
The child’s best interests remain central to decisions concerning contact.
What Can a Parent Do If Contact Is Being Refused
If you are being prevented from having contact with your child, consider taking the following steps:
1. Keep a record
Keep copies of relevant messages, emails and correspondence. Record dates when scheduled contact was refused or cancelled and the reasons provided.
Avoid inflammatory or threatening communication. Written communication should remain focused on the child and the agreed arrangements.
2. Check your existing agreement or court order
Determine exactly what your parenting plan, parental responsibilities and rights agreement or court order provides.
The wording of the document is important.
3. Try to resolve the dispute constructively
Where it is safe and appropriate, parents should consider whether the dispute can be resolved through communication or mediation.
The aim should be to reduce conflict and establish arrangements that serve the child’s best interests.
4. Consider approaching the Family Advocate
The Office of the Family Advocate can assist with disputes involving parental responsibilities and rights, including disputes about contact.
The Family Advocate may assist parents through mediation and can make recommendations to a court where an agreement cannot be reached.
5. Obtain legal advice
If contact continues to be refused, particularly where an existing court order or agreement is being breached, it may be appropriate to obtain advice from a family law attorney about the available legal remedies.
What Should You Avoid Doing?
When parents are in conflict, emotions can understandably run high. However, actions taken in anger can make an already difficult situation worse.
Parents should avoid:
- threatening the other parent;
- using the child as a messenger;
- asking the child to take sides;
- making negative comments about the other parent to the child;
- withholding maintenance because contact has been refused;
- withholding contact because maintenance has not been paid;
- ignoring a court order; or
- attempting to take the law into their own hands.
The focus should remain on finding a lawful and sustainable solution that protects the child’s wellbeing.
The Best Interests of the Child Come First
South African child law is not intended to turn contact disputes into a competition between parents.
The Children’s Act requires the best interests of the child to be the paramount consideration in matters concerning the child’s care, protection and wellbeing.
This means that each family’s circumstances must be considered individually.
For some families, regular unsupervised contact may be appropriate. In other circumstances, contact may need to be structured, supervised or adjusted. Where serious concerns exist, a court may need to determine what arrangement is appropriate.
The important point is that parents should not make unilateral decisions based solely on anger, resentment or conflict with the other parent.
Being prevented from seeing or communicating with your child can be extremely distressing. Equally, a parent who has genuine concerns about their child’s safety may be unsure about what steps they are legally entitled to take.
South African child law provides mechanisms for resolving disputes about parental responsibilities and rights, including contact.
If you are experiencing a dispute about contact, a parenting plan or an existing court order, obtaining professional legal advice can help you understand your rights, responsibilities and available options.
Opperman Attorneys can assist you in understanding the legal position applicable to your circumstances and the appropriate steps to take.
Disclaimer: This article is provided for general information purposes only and does not constitute legal advice. Each child law matter is determined according to its particular facts and circumstances. If you require advice regarding your specific circumstances, consult a suitably qualified legal practitioner.
Reference List
- Children’s Act 38 of 2005 – full legislation
The official Department of Justice PDF contains sections 7, 9, 10, 18, 33–35 and other relevant provisions.
Children’s Act 38 of 2005 – Department of Justice - Department of Justice – Office of the Family Advocate
This is particularly useful for the sections dealing with mediation, parenting plans, contact disputes and the Family Advocate’s role.
Office of the Family Advocate – Department of Justice - Family Advocate contact information
Useful as a resource for readers who want to locate their nearest Family Advocate office.
Family Advocate Contact Details – Department of Justice - Department of Justice – Children’s Act FAQ
Particularly useful for supporting the statement that non-payment of maintenance does not automatically prevent a parent from exercising contact.
Children’s Act Frequently Asked Questions – Department of Justice - South African Constitution – Department of Justice
Useful as the constitutional foundation for the principle that the best interests of the child are paramount.
The Constitution of the Republic of South Africa – Department of Justice - SAFLII – Children’s Act 38 of 2005
This can be used as an additional legal research reference. The consolidated Act is indicated as updated to 28 May 2025 and includes section 35 on refusal of access.
Children’s Act 38 of 2005 – SAFLII
