We often read or hear stories on social media or from friends about fathers of children born out of wedlock finding it difficult to assert and exercise their parental rights and responsibilities. The most common challenge which unmarried fathers face is being denied contact to their children due to customary traditions and/or being subjected to obstacles by the mother and her family.
The Children's Act ("the Act") may go a long way in resolving archaic and gendered power relations within marital and parental relationships. However, the vesting of parental rights and responsibilities differs between married fathers and unmarried fathers. Section 18 of the Act provides that a person may have either full or specific parental responsibilities and rights in respect of a child. There are three main types of parental rights and responsibilities namely: (1) care; (2) contact; and (3) guardianship.
Prior to the commencement of the Children's Act and in accordance with customary traditions observed by the majority of South Africans, the biological father of a child born out of wedlock did not acquire automatic rights and responsibilities to his child, which unfortunately led to many children never knowing their own fathers.
The Act is, as such, watershed legislation, especially in respect of unmarried fathers. Section 21 of the Act provides certain conditions that must be fulfilled by a biological father who wishes to obtain parental rights and responsibilities in regard to his minor child born out of wedlock, namely:
- At the time of the child's birth, he is/ was living with the mother in a permanent life-partnership;
- Or, regardless of whether he has lived or is living with the mother, he consents to be identified or successfully applies to be identified as the child's father or pays damages in terms of customary law; and
- Contributes, or has attempted in good faith, to contribute towards the child's upbringing and expenses in connection with the maintenance of the child for a reasonable period.
A father of a child may, as such, obtain full parental rights and responsibilities through either sections 20 or 21, or by concluding a parental responsibilities and rights agreement with the mother of a child in terms of section 22 of the Act. A father (married or unmarried) will have the same parental rights and responsibilities as the mother of such child, which includes joint decision making in respect of how the child is to be raised, cared for and treated. This is, however, provided that parental rights are not restricted, suspended or terminated.
Unmarried fathers are implored to utilise the Act and ensure that they acquire parental rights and responsibilities in respect of their children, regardless of their relationship with the mother. In most circumstances it is always in the best interest of a minor child to have a bond with his / her father.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.