Children need both parents. Research has shown that their lives are richer and they grow up better adjusted when they have two loving, consistently involved parents in their lives. Sometimes it just isn’t possible to provide that. Marriage rates are down, divorce rates are up and single parent families are on the rise. Nobody wants to go through a custody dispute but sometimes it is inevitable.
In the past, courts tended towards keeping children with their mothers. Known as the “Tender Years Doctrine”, this was the belief that young children were better off with their mothers. This is starting to change as fathers’ rights are cast in the spotlight more.
More women are the breadwinner in the family and there is a slow trend towards fathers doing more than their share of the childcare as well. Courts are interested in protecting the child’s rights and figuring out what is in the child’s best interests.
So what does this all mean for parents’ rights? Do both parents have equal rights, and what are they? How does one go about getting them enforced? And what about the rights of the child? Let’s look at some of the answers contained in the Children’s Act…
Parents’ rights: are they equal?
Parental rights and responsibilities according to South African law are;
- To care for the child
- To maintain contact with the child
- To act as guardian of the child
- To contribute to the maintenance of the child
- Consent or apply to be identified as the child’s father
- Must contribute or attempt to contribute to the child’s upbringing for a reasonable period
- Must have contributed towards the child’s expenses for a reasonable period
The South African legal system recognises the rights of both mothers and fathers. Both parents have a duty to contribute to the maintenance and care of the child. Mothers have automatic full legal rights and responsibilities for the child. Mothers usually have custody, although not always. Married fathers also have full legal rights; no matter when after the conception the marriage occurred or how long the marriage lasted.
It’s with unmarried fathers that the law becomes a little stickier. The Children’s Act of 2005 replaced the ‘Children Born out of Wedlock’ laws to lay out more detailed requirements for unmarried fathers. Unmarried fathers have equal rights and responsibilities towards the child; provided he meets some conditions laid out in section 21 of the Children’s Act. If he has lived or does live in a ‘permanent life partnership’ with the child’s mother at the time of the child’s birth, he automatically acquires full legal rights and responsibilities. If he does not, or has never lived with the child’s mother then he must;
There is room for interpretation and no clarity on the term ‘reasonable period’ which leaves some details up for debate. The law is also not clear on the definition of a ‘permanent life partnership’ either. The onus would be on the father to prove he has met these conditions. Paternity testing may be demanded. Once an unmarried father has acquired rights, he must still negotiate how to exercise them.
Some situations require the consent of both parents /guardians for a minor child. Applying for a passport, leaving the country, changing the child’s name or getting married. Unless sole guardianship is awarded, in which case one parent may consent to these situations.
Enforcing parental rights and responsibilities
Sometimes disputes are unavoidable. If you and the other parent can reach an amicable agreement without involving the legal system, that is first prize for everyone. If this is not possible, you can approach a Family Advocate which is a free service that can help determine access rights and other details, most notably the drawing up of a parenting plan.
If you really can’t come to an agreement, it’s time to lawyer up. Take decisive, positive action towards having your parental rights fully recognised and enforced by the South African legal system. It might be a long and expensive process; but when the rights of the child are under threat it’s worth the fight.
There are only two ways to enforce your parental rights; negotiating with the other parent or through court orders. Once the legal system is on your side, you can have visitations, maintenance orders and other issues enforced by the law. Interdicts, court orders, fines and even jail time could result from failing to uphold the co-parenting agreement. It is important to add that the biological father has a responsibility to contribute towards the maintenance of the child, whether he has applied for paternity or not. Also, maintenance payments and access to the child are separate issues entirely. Even if he has not paid maintenance or is in arrears, a father may still see the child.
To be loved, cared for and safe are constitutionally enshrined basic human rights. Keep in mind it is all about the best interests of the child and constantly ask yourself if your actions are serving your little one well. Any good parent will have a sincere desire to be a present, involved part of their child’s life and will encourage the other parent to do the same. It is in the child’s best interests to have two loving parents whenever possible.
Some resources for further information:
* A full text version of the Children’s Act is available online; simply search for Children’s Act, 2005 (Act No. 38 of 2005). A copy of the entire act can be downloaded from the Department of Social Development website.
* More detailed information can be found in “Child Law in South Africa” Trynie Boezaart Juta and Company Ltd, 2009 – child welfare.
* For more information about involving a family advocate and how to access these services visit the South African Government Services website and follow the links to information about involving a family advocate. In terms of the Children’s Act any disputes must go through a Family Advocate first. The service is free of charge.