Fathers’ Parental Responsibilities and Rights
By Clement Marumoagae
Married and unmarried men who have children have parental responsibilities and rights over those children. These responsibilities are to: care for their children; exercise guardianship over them; maintain contact with them and financially support them. The responsibilities and rights over children are acquired differently by men depending on whether they are unmarried or married to the children’s mothers. In terms of section 20 of the Children’s Act 38 of 2005 (hereafter CA), biological fathers who are married to their children’s biological mothers have automatic parental responsibilities and rights. Fathers who are married to their children’s biological mothers do not have to approach any court to be ‘granted’ any of the statutory parental responsibilities and rights. They may, however, need to go to court, to enforce any of the parental responsibilities and rights that they acquired automatically, if there is any interference with the exercise thereto.
Unmarried father do not acquire parental responsibilities and rights automatically. They acquire these responsibilities and rights based on the prescribed events that took place either when the child was conceived or born as well as their efforts regarding financial support they provided for their children. Section 21 of the CA provides the legal framework under which unmarried fathers acquire parental responsibilities and rights. First, unmarried fathers acquire full parental responsibilities and rights if they were living with their children’s biological mothers at the time of such children’s birth. Secondly, irrespective of whether they were living with their children’s biological mothers, they will acquire parental responsibilities and rights when they pursue any of the following options: consent to be identified as the children’s fathers; makes an application to be identified as fathers; pay damages in terms of customary rites; contribute to their children’s upbringing for a reasonable period; attempted in good faith to contribute to their children’s upbringing for a reasonable period; contribute to expenses relating to their children for a reasonable period; attempted in good faith to contribute towards the expenses of their children for a reasonable period.
It is important to note that section 21 of the CA does not affect the duty of fathers to contribute towards the maintenance of their children. This section also mandates that should there be a dispute between unmarried fathers and their children’s biological mothers regarding the fathers’ efforts of identifying themselves as fathers, paternity, residence with biological mothers at the time of the children’s birth, father’s contribution towards the children’s upbringing, and fathers’ contribution towards the children’s maintenance as well as payment of customary law damages, the dispute must be referred for mediation. The mediation can be facilitated by a family advocate, social worker, social service profession or other suitably qualified person. Any party not satisfied with the mediation process can approach a court to review that mediation.
We are aware that many fathers are denied the opportunity to meaningfully play their rightful roles in their children’s lives and prevented from influencing their upbringing. We have extensive experience in dealing with care and contact matters (formally described narrowly as custody and access). Our approach is to ensure that all the loving and caring fathers who wish to be involving in the care of their children, are not prevented from doing so. We are of the view that it is not in the best interests of any child to be denied the opportunity of his or her father’s love. We are also alive to the fact that there are instances where denying a particular father contact with the child may be in the best interest of the child, particularly were the father continuously abuses the child. Should you need assistance in being part of your child’s life, do not hesitate to contact us for legal assistance.
