UNMARRIED FATHERS & PARENTING PLANS
Section 18 of the Children’s Act 38 of 2005 provides that a person may have full or specific Parental Responsibilities and Rights in respect of a child and that those responsibilities and rights include :
- the right of care of the child;
- the right to maintain contact with the child;
- the right to act as the guardian of the child; and
- the responsibility to contribute towards the maintenance of the child.
The Sections further provides that a parent or other person who holds guardianship rights over a child may exercise his or her rights herein independently and without the consent of the other parent or person exercising such rights (i.e. signing consent forms for an operation, enrolling a child at a school etc). The proviso hereto however being that the consent of both guardians is required in respect of :
- the child’s marriage;
- the child’s adoption;
- an application for the departure or removal of the child from the country;
- an application for a passport for the child; and
- the alienation or encumbrance of immovable property belonging to the child.
As is apparent from the new Act, the term “custody” has been removed from our Statute Books and replaced with the broader concept of “care” ; whilst the term “access” has been changed to that of “contact”. In terms of the common law, custody refers to a person’s capacity to have the child with him or her and to control and supervise the child’s daily life. The definition of “care” in the new Act is extended beyond mere custody to include inter alia the right and responsibility for (i) caring for the child; (ii) supporting and guiding the child; (iii) assuming responsibility for the child’s general upbringing, health, education, safety, social interactions, and general welfare.
The common law principle pertaining to contact (access) remains intact in the new Act. This principle embodies the right of a parent/person holding Parental Responsibilities and Rights to maintain a personal relationship with the child; the right to enjoy the company of the child; and the right to communicate with the child on a regular basis.
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, alternatively if he was married to the child’s mother at the time of the child’s conception; alternatively at the time of the child’s birth; alternatively at any time between conception and birth. This Section is largely based upon the premise of the common law rule that a man acquires full rights and responsibilities over a child by virtue of his marriage to the mother .
The rights and responsibilities of the unmarried father is dealt with under Section 21 of the Act. This is a major reform of the Law pertaining to the rights of the father of the child born out of wedlock.
This Section provides that if the child’s father meets certain legislative requirements, then the father is deemed to have automatically acquired exactly the same Parental Responsibilities and Rights over the child as that of a father married to the child’s mother. You will recall at common law that the unmarried father had no automatic parental authority whatsoever vis a vis the child but that he could approach the High Court for an order awarding him rights of custody and/or guardianship and/or access to the child.
In terms of Section 21 of the Children’s Act, the unmarried father automatically acquires full Parental Responsibilities and Rights in respect of his child 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) which provides that he must (a) be identified or consent to being 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.
It is important to bear in mind that a father who meets all these requirements, qualifies for automatic Parental Responsibilities and Rights without the necessity of having to approach the High Court for an Order.
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.
The scenario of both parents’ being co-holders of Parental Responsibilities and Rights over a child creates a situation almost akin to that of a joint “custody” arrangement insofar as decision making rights and the rights of care are concerned – with of course, the attendant difficulties associated with such arrangement.
To safeguard against such difficulties, provision is made in the Children’s Act for the nomination of a specific “parent” to be the place of primary residence / principal place of residence for the child. The effect hereof being that while the parental right to care for the child and of joint decision making remains intact, some of the other more deleterious effects associated with “joint custody” are ameliorated by the nomination of a primary place of abode for the child.
Insofar as joint-decision making is concerned the Children’s Act provides that a holder of Parental Responsibilities and Rights must give due consideration to the views of any other co-holder of Parental Responsibilities and Rights before that holder makes a decision that will have a significant impact on the other co-holder’s exercise of Parental Responsibilities and Rights including their right of contact with the child. It is important to note that “due consideration” does not equate to joint decision-making. The latter should be sought at the very least in respect of medical, educational and relocation issues that could adversely affect a child’s well-being.
Holders of Parental Responsibilities and Rights must give due consideration to the child’s views in respect of major decisions to be made. Regard by necessity being had to the child’s age, maturity and stage development.
Insofar as contact is concerned, the right of contact is deemed to be a right belonging to the child and not the parent. The ‘non-custodian” parent (ie: the parent who does not hold primary residence) is however deemed to possess an inherent entitlement to spend time with the child and enjoy the child’s company.
As a general rule, providing there are no indications of alcohol or drug abuse or acts of violence against the child, the non-custodian parent would be entitled to exercise reasonable contact with the child. Most attorneys working in the field of Family Law tend towards encouraging a generous contact arrangement on the basis of recognition of the principle that a child needs both its mother and a father for optimal growth and development.
With a child of tender age, contact by necessity should be phased in over a period of time corresponding with the child’s growing maturity and levels of independence. While nothing is cast in stone as to how this contact should be phased in, a guideline is set out in a corresponding article entitled Contact Guidelines – Young Children with the caveat that each matter must be viewed from its own set of unique circumstances as well as those of the parents involved.
It is always advisable for co-holders of Parental Responsibilities and Rights to enter into a Parenting Plan in order to regulate the exercise of their respective Parental Responsibilities and Rights viz the minor child. Where the co-holders are experiencing difficulty in exercising their Responsibilities and Rights they are required, in terms of Section 33 of the Children’s Act to utilise the services of a Family Advocate, Social Worker, Psychologist or suitably qualified Mediator for purposes of reaching agreement on the contents of the Parenting Plan.
Once a Parenting Plan has been agreed to by the Parents, the Parenting Plan can either be registered with the Family Advocate’s Office alternatively made an Order of Court.
Where Parties are unable to reach agreement, the Court can be approached to intervene and make the necessary Order.
It is important to note that Section 35 of the Children’s Act criminalises the actions of a holder of Parental Responsibilities and Rights who contrary to a Court Order or the provisions of a Parental Responsibilities and Rights Agreement/Parenting Plan, refuses to allow the other co-holder to exercise Parental Responsibilities and Rights over the child and/or have contact with the child.