THE CHILDREN’S ACT
The Children’s Act, 38 of 2005 regulates how persons acquire parental responsibilities and rights over a child.
For example, a biological mother whether she is married or unmarried automatically acquires full parental responsibilities and rights. However, unmarried fathers do not. This article is intended to show you how the Children’s Act can apply to you.
WHAT IS PARENTAL RESPONSIBILITIES AND RIGHTS?
Parental responsibilities and rights can be described as the rights a person may have in respect of a child. Co-holders of parental responsibilities and rights occur when more than one person share these responsibilities and rights.
The co-holders must always consider the best interests of the child. These include the rights and responsibilities to care for a child, act as the guardian, contribute towards maintenance and maintain contact with the child.
HOW DOES ONE ACQUIRE PARENTAL RESPONSIBILITIES AND RIGHTS?
A biological father: Acquires full parental responsibilities and rights in respect of the child, if he is married to the child’s mother, he was married to the child’s mother at the time of the child’s conception or birth, or at any time between the child’s conception and birth; or he is or was married to the child’s mother at any time after the birth.
A biological mother: Acquires full parental responsibilities and rights in respect of the child whether she is married or not. A biological mother is granted these rights due to the fact that she gave birth to the child.
Unmarried biological fathers: Do not acquire full parental responsibilities and rights in respect of the child. The Children’s Act states that an unmarried father will have automatic parental responsibilities and rights if at the time of the child’s birth, he was in a life partnership with the mother, regardless of whether he was living with the mother or not, he consents to be identified as the father of the child, applies for an amendment to be effected on the birth certificate, or pays damages in terms of customary law; and he contributes or has attempted to contribute in good faith to the upbringing of the child.
Artificial insemination: The biological mother and the biological father of the child acquires full parental responsibilities and rights in respect of the child. When a married woman is impregnated with the gametes of her husband, the child will be regarded as having been born to married parents.
Guardians and caregivers: A parent may appoint a fit and proper person as guardian of the child, or to care for the child in the event of his/her death. This will only come into operation if the parent dies.
- Parents who have joint parental rights on termination of a marriage are co-guardians, so if one dies, their ex-spouse automatically obtains care of the child.
- If the surviving spouse dies, the person whom the parent has appointed as the sole natural guardian will be vested with the care of the child. The sole natural guardian will acquire full parental responsibilities and rights once the appointment is accepted.
- The child’s views must be considered when a decision regarding the appointment of a caregiver or guardian is taken.
WHO CAN APPLY FOR GUARDIANSHIP OR CARE OF A CHILD?
Any person who has an interest in the care or well-being of a child for example, a grandparent, may apply to court for an order to allow contact with or care of the child. When a court considers such an application, it must take into account:
- The child’s best interests,
- Relationship between the applicant and the child,
- Degree of commitment that the applicant has shown towards the child,
- Extent to which the applicant has contributed towards expenses in connection with the maintenance of the child,
- Relationship between the child and the person whose parental responsibilities and rights are being challenged, and
- Any other factor.
Any person who has an interest in the care or well-being of the child may apply to the High Court for an order granting guardianship.
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