Parental Rights

Many people have children without getting married. In most cases, if the relationship breaks down, it can be just as acrimonious as the breakdown of a marriage.

In the Children’s Act the focus is not on parental authority and rights, but on the child’s rights. The Act provides that the best interests of the child are of paramount importance and must be applied and considered in all matters concerning the care, protection and well-being of the child. The Act sets out an exhaustive list of factors that should be taken into account when considering what is in the child’s best interests.

Parental responsibilities and rights

Parental responsibility is the responsibility to care for the child, to maintain contact with the child, to act as guardian of the child, and to contribute to the maintenance of the child.

Biological Mother

The biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights solely on the fact that she has given birth to the child.

 

 

Married Biological Father

The biological father has full parental responsibilities and rights in respect of the child if: he was married to the child’s mother at the time of the child’s conception and birth; he is married to the child’s mother; or they are or were married at any time after the birth.

Unmarried Biological Fathers

Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:

  • At the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married.
  • Regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law.
  •  He contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period and has paid or attempted to pay maintenance.

Disputes

If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.

Go to: Co-parenting

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