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November 16, 2018

Access and Visitation Rights of a parent

A court in Northampton County, Pennsylvania, ordered a mother to stop breastfeeding her 10-month-old-baby so that the child could spend more time with the father.

The judge suggested that the mother switch her daughter to formula so that she could spend every weekend with her father. This decision by the court in Pennsylvania has elicited varied reactions from different people.

Some people perceive this decision as intrusive to the mother on how she should parent and take care of her child, since it seeks to limit the mother from breastfeeding the child.

Whenever making decisions appertaining to children the courts are always guided by the best interest principle. The courts must ensure that whatever decision they make, it is in the best interests of the minor to do so.

Section 4 (2) of the Children’s Act provides that: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 53 (2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child.

These guiding principles are the same ones that the court applied in making the determination it made in the above case. It weighed the interest of the minor to spend the time with the father and if she could be fed with formulae to facilitate this.

The Children’s Act does not set out the principles that will guide the court in making access orders.

However, the courts can infer on the factors to determine custody orders in making access orders. Section 83(1) of the Children’s Act provides that in determining whether or not a custody order should be made in favour of the applicant, the court shall have regard to the conduct and wishes of the parent or guardian of the child; the ascertainable wishes of the relatives of the child; the ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his home in the last three years preceding the application; the ascertainable wishes of the child; whether the child has suffered any harm or is likely to suffer any harm if the order is not made; the customs of the community to which the child belongs; the religious persuasion of the child; whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether those orders remain in force; the circumstances of any sibling of the child concerned, and of any other children of the home, if any; and the best interest of the child.

In making access orders, the court will also consider the following factors:-

 

  • The child's age, gender, mental and physical health.

  • Mental and physical health of parent seeking to have access.

  • Lifestyle and other social factors of the parent, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse.

  • The love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance.

  • The parent's ability to provide the child with food, shelter, clothing and medical care.

  • The child's established living pattern (school, home, community, religious institution).

  • The child's preference, if the child is above a certain age.

  • The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

If the court forms the opinion that it is in the best interest of the minor to spend time with one of the parents, it will weigh all the concerns raised by the opposing side and make a determination on what will best suite the minor. It is every parent’s right to have access to their child, if they do not have custody. The access must however be beneficial to the minor and not to expose the minor to any form of risk.

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