Advocate Veerash Srikison examines if just any father in South Africa can automatically be given the opportunity to be a dad.
Currently, according to the Centre for Child Law, approximately 60 percent of children in South Africa are not raised within a two-parent conventional family environment, making their biological parents either divorced or unmarried, or either or both parents are deceased, or their whereabouts are unknown. With this in mind and in light of the Children’s Act 38 of 2005, which states that children have an inherent right to family care or parental care, where does the role of the father fit in?
CONTACT AND CARE
In terms of section 20 of the Children’s Act 38 of 2015 a father, who is married to the biological mother or if he was married to the mother at the time of the conception or birth of the child or anytime between the child’s conception and birth, will have full responsibilities and rights in respect of his child. If the marriage ends and he finds himself living the life of a single father, this does not mean these responsibilities and rights have been diminished. What the end of the marriage means is that the contact he has and the opportunity he has to care for his child is based on a routine and structure he creates with the mother of his child during the divorce process.
Prior to the Act, unmarried fathers held no parental authority (now known as parental responsibilities and rights) over their child and had to show special grounds as an interested party for the court to hear his circumstances and provide him with custodial rights (now known as care). Since the inception of section 21 of the Act, the position of an unmarried biological father has changed.
He now only has automatic parental responsibilities and rights if he is living with the mother in a permanent life partnership or consents to being identified as the father and has contributed or attempted to contribute for a reasonable period to the child’s upbringing and maintenance. Any dispute as to whether or not the unmarried father has fulfilled these requirements must first be dealt with in mediation before taking it to court.
MAKING A PLAN
It is clear from these provisions of the law that a father’s responsibilities and rights to his child are not automatic but conditional, as it depends on his relationship with the mother and the status of their relationship. How then can this relationship be created if they are not together? The Act makes provision for a parenting plan, for previously married parents, and a parental responsibilities and rights agreement for unmarried or divorced parents to be discussed and decided on by the parents preferably in mediation.
The purpose of this document is to promote the child’s right to develop a relationship with both parents. The parenting plan has opened the doors for unmarried and divorcing parents to build a relationship and communicate how best they can raise their child separately. It provides fathers the opportunity to share in the responsibilities and rights over their children, and does away with the age-old belief that “sole custody” always goes to the mother.
The parenting plan has also allowed moments like Father’s Day to be set aside in the contact schedule as a special day. Children who know their fathers want to be a part of their lives and fathers who want the same, provided the child’s safety and well-being is accounted for, should not be denied the opportunity to spend special days together or maintaining a healthy and encouraging relationship with one another where the father’s presence will be a positive one.
All fathers who make their child’s best interest a priority qualify being called ‘dad’. May the life lessons you teach your children and the humility they teach you be the foundation of ever-lasting love and wonderful memories. Happy Father’s Day to you!