No, maintenance and contact with your child are two separate issues. If your ex fails to pay maintenance there are various avenues of recourse available to you, such as:
- A criminal complaint in terms of Section 31 of the Maintenance Act of 1998
- A garnished order against your ex’s salary
- Blacklisting your ex
- Contempt of court order
- Attachment of assets or pension fund
If you prevent your ex from seeing your child, you will both be breaking the law. Your ex will be violating the Maintenance Act as well as the Children’s Act, which places a duty on parents to support their child. You, on the other hand, are in violation of the law if you do not allow your ex to see your child. Your ex is entitled to see your child even if they do not pay maintenance.
Sometimes your first instinct when going through a breakup can be to hurt the other person. The easiest way to do this can be by using your child. By preventing your ex from seeing your child you are not only punishing your ex, but you are also punishing your child. A child does not understand a fight with your ex and will feel as though they are the reason for this conflict. Your child might feel rejected or unloved. This will affect their self-esteem throughout their life. It may cause depression and other lifelong battles that can be prevented by simply being the bigger person and allowing them to see the other parent even though you haven’t received maintenance.
The most important and difficult choice a parent can make is to put aside their pain and do what’s within the best interests of their child.
What can I do if my ex prevents me from seeing my child?
If you are being prevented from seeing your child and there is a court order in place like a parenting plan or divorce settlement, you can approach the Children’s Court for assistance. Section 35 of the Children’s Act provides that:
“(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
(2) (a) A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.
(b) A person who fails to comply with paragraph (a) is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding one year.”
If your ex is preventing you from seeing your child regularly, you can approach the court and they will issue a warrant. The courts will then likely hold the warrant over and give your ex a warning. Should the conduct continue, your ex will be arrested.
If you and/or ex do not have a court order, we can assist to draft a parenting plan that will regulate maintenance and contact with your child.