Rights of an unmarried father

The joy that comes with being a parent is unexplainable, but for some this joy may be short lived. Having a child out of wedlock and/or with parents having separated may lead to challenges and frustration for many unmarried fathers. In this articles, I address the questions and incorrect myths about the rights of an unmarried father.

1. What parental responsibilities and rights may a person have in respect of a child?

In terms of Section 18(2) of the Children’s Act, there are four main elements of parental rights namely:

• Care of the child
• Contact
• Guardianship 
• Maintenance 

1. Does the father have the same rights as the mother?

Yes. The myth that mothers have more rights to a child than father is legally untrue. The biological father has full parental responsibilities and rights if he is married to the child’s mother or was married to the mother at conception or birth or any time between the conception and birth.

If the father does not comply with any of the above situations, he may still acquire full parental responsibilities and Rights if he was living with the mother in a permanent life-partnership at the time of the child’s birth. In the case where he was not living with the mother, he may acquire the responsibilities and Rights if he complies with at least one of the following:

• He consented or applied to being identified as the child’s father in terms of Section 26.
• Paid damages in terms of customary law
• Contributed (or attempted to contribute) to the child’s upbringing in good faith for a reasonable time period
• Contributed or attempted to contribute in good faith towards the maintenance of the child for a reasonable period.

In the case where the biological parents are disputing whether the biological father has successfully fulfilled the conditions in Section 21 (1) and may acquire responsibilities and Rights, the matter may be referred to a family advocate, social worker, social service professional or a suitably qualified individual for mediation.

1. Can the maternal grandparents stop the father from exercising his parental responsibilities and Rights?

If the father has acquired full parental responsibilities and Rights, he becomes a co-holder the parental rights along with the mother. This means that a parent may exercise those responsibilities and Rights without the consent of the other parent, unless the contrary prevails by way of Children’s Act, or any other law or court order. A co-holder may not surrender or transfer his/her rights, but may allow another person (or co-holder) to exercise any or all parental responsibilities or rights on the former’s behalf provided that all parties involved agree to this. This means that, unless there was an agreement amongst all co-holder and person(s), no person may exercise parental responsibilities and Rights on behalf of a co-holder. This includes grandparents.

Any person who has care or custody of the child may not refuse another person who has access to the child or holds parental responsibilities and Rights to exercise access or responsibilities and Rights in terms of that child, unless contrary prevails by court order or parental responsibilities and rights agreement. In the case that they do, the person is guilty of an offence. A person who has care or custody of the child has an obligation to inform any person who has access or parental responsibilities and Rights to the child (either by court order or agreement) upon exchange of residential address and should inform them in writing. Failure to do so will result in that person being guilty of an offence.

1. How does a father claim paternity of a child?

• By applying for an amendment to the registration of birth of the child (birth certificate), which will identify him as a father, subject to the mother’s consent; or
• By applying for a court order confirming paternity in the case where the mother refused to consent to the above or is incompetent to give consent due to mental illness, or the mother cannot be located or is deceased.

**PLEASE NOTE: THIS DOES NOT APPLY TO THE BIOLOGICAL FAYJER OF A CHILD CONCEIVED THROUGH RAPE OR INCEST, OR A FATHER WHO IS BIOLOGICALLY RELATED TO THE CHILDAS A RESULT OF BEING A GAMETE DONOR IN ARTIFICIAL FERTILISATION.

1. What about maintenance?

According to the Children’s Act, both parents have a duty to contribute towards the child’s upbringing, irrespective of whether parental responsibilities and Rights have been acquired by the father, therefore a biological father has the obligation to contribute towards the child’s maintenance regardless of whether he has acquired the parental responsibilities and Rights in terms of Section 21(1). Should a person fail to maintain their child, a children’s court may order that said person pay a sum of money for a monthly contribution, taking into consideration the person’s earning capacities and other responsibilities. The court will calculate the amount on a pro rata basis. It is important to note that the court may attach a person’s wages. This means that when passing the maintenance order, the court may order the person’s employer to deduct an amount from the wages or salaries expected to the respective recipient as specified in the court order, to which the employer is obliged to make prompt payments.

CONCLUSION

It is always advisable for co-holders of parental responsibilities and Rights to draw up a parenting plan in terms of Sections 33-35 of the Children’s Act. This will encourage stability and avoid conflicts which may arise as a result of exercising those responsibilities and Rights. A parenting plan will deal with issues relating to primary residence of the child, contact (visitation rights), maintenance and school and upbringing of the child. When drawing up the parenting plan, parties must ensure that it is in the best interest of the child. A family advocate, social worker or psychologist must assist parties when drawing up the parental plan, alternatively mediation through a social worker or suitably qualified person. Lastly, the parenting plan has to be registered with the family advocate in order to be enforceable.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.