In terms of the Children`s Act, No. 38 of 2008 (“the Act”), the biological father of a child still has full parental rights and responsibilities in respect of his child even after divorce, unless ordered otherwise by a court of law.
A biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. The mother attains those rights solely based on the fact that she has given birth to the child.
A 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; and
- They are or were married at any time after the birth.
The Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does to mothers. In terms of the Act, an unmarried, biological father has full parental rights to the child if he:
- Is living with the mother of the child in a permanent life-partnership at the time of birth;
- Has successfully applied to be identified as the child`s father;
- Has contributed or tried to contribute to the upbringing of the child for a reasonable period; and
- Has contributed or tried to contribute in good faith towards the maintenance expenses for the child for a reasonable period.
What to do if a mother denies a father access to and/or contact with the child?
An unmarried biological father can exercise his rights by approaching the Children`s Court or the High Court to apply to formalise his parental rights and responsibilities. Whilst this process can be done without an attorney, we recommend getting the advice of an experienced family law attorney to assist you with this type of application.
Steps to take when a dispute arises between the parents
If a dispute arises between the biological parents over the parental rights and responsibilities of the child in question, the matter should be referred for mediation to a family advocate, social worker or other suitably qualified person. As experienced family law attorneys, we can assist you with this process and further assist you in formalising these rights into a Court Order.
What is mediation?
It is the process of whereby the parties 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
Possible outcomes of mediation
- The parties cannot agree on whether or not the father meets the criteria;
- The parties agree that the father does not meet the criteria and the mother is not prepared to grant him any parental responsibilities and rights;
- The parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental responsibilities and rights by means of a parental responsibilities and rights agreement;
- The parties agree that the father has parental responsibilities and rights and agree on a parenting plan; and
- The parties agree that the father has parental responsibilities and rights but cannot agree on the parenting plan.
What happens if the parties fail to reach an agreement on whether the father satisfies the criteria on not?
The family advocate will issue a Form 6 (a statement of the outcome of the mediation). The parties may then approach the Court for adjudication of the issues and if the matter is brought to the Court, the Court will usually refer the matter to the family advocate for investigation.
If the parties reach an agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to the High Court to be granted certain parental responsibilities and rights, care, contact or guardianship.
If the parties reach an agreement that the father does satisfy the criteria, they can enter into a parenting plan which the family advocate will then assist them with. This parenting plan should then made an Order of Court, which our offices would be glad to assist you with.
Andani Matenzhe:Candidate Attorney
Attorneys are specialists in parental rights and are able to assist you with the advice you need.