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Fathers’ Rights

AN OVERVIEW OF FATHERS’ RIGHTS TO THEIR CHILDREN 

The Children’s Act has brought about some welcome changes to Parental Responsibilities and Rights of Fathers. Section 18 of the Children’s Act 38 of 2005 provides that a person (including an unmarried father)  may be a holder of full or specific Parental Responsibilities and Rights in respect of a child.

PARENTAL RESPONSIBILTIES & RIGHTS

In terms of Section 18, the responsibilities and rights of parenthood include :

  • Care: the right of care of the child;
  • Contact: the right to maintain contact with the child;
  • Guardianship: the right to act as the guardian of the child; and
  • Maintenance: the responsibility to contribute towards the maintenance of the child.

MARRIED FATHERS’ RIGHTS

Section 20 of the Children’s Act sets out the Parental Responsibilities and Rights of married fathers and stipulates that the biological father of a child has full Parental Responsibilities and Rights in respect of the child:

  • If he is married to the child’s mother.
  • If he was married to the child’s mother at the time of the child’s conception.
  • He marries the mother at the time of the child’s birth.
  • A marriage takes place at any time between conception and birth.

THE COMMON LAW AND THE MARRIED FATHER

Section 20 is largely based upon the premise of the common law rule that a man acquires full rights and responsibilities over his child by virtue of his marriage to the mother .

UNMARRIED FATHERS’ RIGHTS

Section 21 of the Children’s Act deals with the rights and responsibilities of the Unmarried Father. This Section heralds a major reform of the South African Law in respect of Unmarried Fathers’ Rights for a child born outside of a marriage. 

AN OVERVIEW OF SECTION 21

In a nutshell, Section 21 provides that:

if the child’s father meets certain legislative requirements, then that father acquires exactly the same Parental Responsibilities and Rights over the child, as would have acquired had he married to the child’s mother.  

THE COMMON LAW AND UNMARRIED FATHERS

At common law the unmarried father had no automatic parental authority whatsoever over his child. He could however approach the High Court for an order to award him rights of custody, guardianship, or access to the child. He would need to prove that this was in the child’s best interests.

SECTION 21 AND UNMARRIED FATHERS

In terms of Section 21 of the new Children’s Act, the unmarried father automatically acquires full Parental Responsibilities and Rights in respect of his child on proviso her satisfies certain legislative requirements.

UNPACKING SECTION 21

A father qualifies for automatic Parental Responsibilities and Rights without the necessity of first having to approach the High Court for an Order in the following instances

  • if he lived with the child’s mother in a permanent life partnership at the time of the child’s birth.
  • Regardless of whether or not he lived with the child’s mother in a permanent life partnership, he nonetheless still acquires full Parental Responsibilities and Rights if he complies with the requirements set out in Section 21(1)(b).
  • In terms of Section 21(1)(b):
    • (a) he must be identified or consent to be identified as the child’s father;
    • (b) contributed or have attempted in good faith to contribute towards the child’s upbringing; and
    • (c) he must have contributed or attempted to contribute in good faith towards the child’s maintenance for a reasonable period of time.

 MEDIATION OF SECTION 21 DISPUTES

In the event of there being a dispute between the child’s mother and father as to whether the father has met the requirements of Section 21(1)(b) the dispute must be referred to mediation and in the event of the mediation being unsuccessful, either party can thereafter approach the High Court for adjudication of their matter.

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