Don't deny them the right to be fathers

FAMILY TIES: Fathers who feel they are not given fair access to their children can seek legal counsel to determine what are their legal rights and responsibilities Photo: Jupiterimages
FAMILY TIES: Fathers who feel they are not given fair access to their children can seek legal counsel to determine what are their legal rights and responsibilities Photo: Jupiterimages

THERE are unmarried fathers who would love to spend quality time with their children this Father's Day, but are still denied visitation rights or not allowed to see the child.

Many people in South Africa still believe that unmarried and divorced fathers have limited rights to their children and that the mother has the sole right to decide what is best for the child. This is no longer the case.

Fathers who feel that they are not given fair access to their children must seek legal counsel to determine what are their legal rights and responsibilities.

Bandile Motau*, 37, of M section at Umlazi, Durban, is one such father.

Motau says the court granted children custody to his former wife while he was granted visitation rights. But she won't let him near his children.

"She has even changed cellphone numbers and moved house without giving me her forwarding address," he says.

Motau is not alone in this. Many unmarried fathers don't know if they have child custody or visitation rights.

Fortunately, unmarried fathers have the same custody and visitation rights as a divorced father.

In terms of the Children's Act, an unmarried father can acquire parental rights and responsibilities automatically, without the need to go to court, if he complies with conditions set out in section 21.

Yusuf Boda, head of the legal department at Legal and Tax Services, says in terms of the Constitution, fathers have a right to play a role in their children's lives because this is in the best interests of the children.

He says this marks a break from the traditional thinking where South African law focused more on a natural father's financial responsibilities to children than his right to be part of their lives.

The Children's Act 38 of 2005 also marked a milestone in how natural fathers' rights arehandled.

"On Father's Day, June 16, it should be worth remembering that fathers - even unmarried fathers - now have rights they did not have in the past," he says.

Since fathers are as responsible for their children as mothers are, they should be allowed to play a significant role in their upbringing, Boda says.

According to the Children's Act, the biological father of a child has full parental responsibilities and rights if he is, or was, married to the child's mother at the time of the child's conception, birth, or any time between the child's conception and birth.

Boda says even after a divorce, the biological father still has full parental responsibilities and rights in respect of his child unless a court orders otherwise.

An unmarried biological father acquires full parental responsibilities and rights in respect of a child if he:

l Is living with the mother in a permanent life-partnership at the time of birth;

l 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;

l Has contributed or has attempted in good faith to contribute to the child's upbringing for a reasonable period;

l Has contributed or has tried in good faith to contribute towards maintenance expenses for the child for a reasonable period.

Some of the rights natural fathers include:

l To be informed of the pregnancy;

l To have the opportunity to acknowledge paternity and to be included in the registration of the child's birth;

l To accept or oppose the adoption of an unplanned child and have this stance put on the record; and

l To adopt the child should the birth mother decide to give the child up for adoption.

By acknowledging paternity, a father accepts to share financial responsibility for the child, should he and the mother choose not to raise the child together.

But the mother may seek a court order for maintenance payments if she and the father cannot agree about how much he should contribute financially to the child's upbringing, Boda says.

Unmarried fathers may acquire parental rights and responsibilities automatically if they comply with conditions set out in section 21 of the Children's Act.

* Not his real name

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