South African law defines parental responsibilities and rights as the responsibility and right to care for the child, maintain contact with the child, act as the guardian of the child and contribute towards their maintenance.
The Children’s Act of 2005 automatically gives full parental responsibilities and rights to a child’s biological mother, but what rights do biological fathers have? When it comes to an unmarried biological father, he acquires full parental responsibilities and rights in respect of a child if he:
- Is living with the mother in a permanent life-partnership at the time of birth.
- Consents to be identified as the child’s father, successfully applies to be identified as the child’s father, or pays damages in terms of customary law.
- Has contributed or has attempted in good faith to contribute to the child’s upbringing for a reasonable period.
- Has contributed or has tried in good faith to contribute towards maintenance expenses for the child for a reasonable period.
ONE MOMENT LASTS A LIFETIME
There are instances when a one-night stand results in pregnancy and birth of a child. Where the mother of the child does not inform the man that he is the father of her child and proceeds to make all the decisions about the child’s well-being and daily living arrangements, should the father learn of the child’s existence, a paternity test can be done to prove he is the father. If the father makes repeated contact with the mother and attempts to see his child, as well as sends gifts or money to assist with maintenance, a court might find a case for the father that he has automatically acquired full parental rights and responsibilities. As such, the father can assert his position and what was intended to be a brief sexual encounter becomes a life-long relationship.
PUTTING PEN TO PAPER
Where both parents want to raise their child together despite living in separate homes, the Children’s Act calls for a Parental Rights and Responsibilities Agreement to be mediated and drafted. The purpose of this agreement is to establish how each parent will care for the child and develop a contact schedule so that the child is able to maintain a relationship with both parents. Guardianship will also be addressed and both parents are entitled to be legal guardians of their child. Maintenance will be properly calculated and in accordance with the child’s reasonable needs and both parents’ means. This agreement must be seen as an evolving one in that it will have review clauses which will allow certain terms to be amended in accordance with the child’s age and developmental needs.
THE IMPORTANCE OF A PARENTAL RIGHT AND RESPONSIBILITIES AGREEMENT
From 1 October 2014, parents travelling from South Africa with a child needed to produce an unabridged birth certificate that shows the names of both parents. For single parents, or those travelling alone with their child, the new regulations are likely to prove even more off-putting.
- They will also need to produce an affidavit in which the absent parent gives consent for the child to travel, a court order granting full parental responsibilities or legal guardianship of the child, or the death certificate of the absent parent.
- This agreement does away with any potential disagreements on the child’s contact (‘access’) and the child can easily adapt to a life in separate homes from the beginning.
- The financial consequences of maintaining your child are known upfront and parents can budget accordingly each month. If the maintenance is not agreed upfront with payment dates, the mother may obtain a maintenance order against the father for the maintenance of their child separately.
