Father’s Rights Child Custody South Africa. Know Your Rights In Respect Of The Child.

The biological married father in terms of Section 20 of the Children’s Act No 38 of 2005 is defined as someone who has full parental responsibilities and rights in respect of the child:

  1. “If he is married to the child’s mother, or
  2. If he was married to the child’s mother at-
  3. the time of the child’s conception;
  4. at the time of the child’s birth;
  5. any time between the child’s conception and birth.”

On divorce, the biological married fathers have the following father’s rights child custody South Africa, contact, care, guardianship. Biological fathers can even become the primary caregivers of the child/children. Primary residence of the child/children can be awarded to the father if, for example, the mother is an alcoholic or is a substance abuser with no prospect of reforming.

It is generally accepted today, which is a great departure from the period up to the 1990”s that fathers can be as good as mothers regarding primary caregiving even of babies and small children.

Even if it is not in the best interest of the child, to live with the father, he has the right to have contact (access) to the child by arriving at a settlement with his estranged wife as to what would be in the best interest of the child. In the case of babies, the father can normally see his child at times convenient to the mother, bearing in mind that she is attending on an almost full-time basis in rearing the child and that routine is a priority.

In the case of older children, there is no hard and fast rule and contact is always subject to the social, educational and religious activities of the child/children. Normally, although I stress that this is not a rigid rule, fathers see their kids every second weekend, on long weekends, fathers day, alternative school holidays long and short and every alternative Christmas day.

In my experience, everything depends on the relationship between estranged parents. If the estranged parents have a good relationship, then often, the mother will ask the father to look after the children, outside of any court agreement, whereas where there is an acrimonious relationship, the father will be expected to stick to the letter of the court agreement.

Part of the parental responsibilities of a divorced father is that he will still have guardianship over the child/children which mean that if the child requires a Visa or consent to marry, assuming the child is underage, the father will have to consent thereto.

The law differentiates in the definition of an unmarried biological father. In terms of Section 21 of the Children’s Act, the biological father acquires full parental responsibilities and father’s child custody rights in respect of the child-

  1. If at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
  2. If he, regardless of whether he has lived or is living with the mother-
  3. Consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father ( i.e. if the court confirms his paternity) or pay damages in terms of customary law;
  4. Contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
  5. Contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
  6. If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfillment by that father of the conditions set out in sub-section (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified people.

The parental responsibilities and father’s child custody rights of a divorced biological father and of an estranged unmarried father are exactly the same as detailed above. They both have rights of contact (access), care (custody) and guardianship and the best interests of the child become important on how these rights will be exercised.

It is important to remember that contact to a child is not dependant on the payment of maintenance. This is an aspect of the law that must be looked at carefully.

Contact our experienced Father’s Rights Child Custody South Africa legal team today for assistance and guidance.