Father’s Parental Responsibilities and Rights to his Child

confirm parental responsibilities and rights child father mother refuses court

Confirming a father’s Parental Responsibilities and Rights to his Child

advice-child-maintenance-child-custody-divorceIn the past, the terms Custody and Access was used in relation to the rights of parents to children. Now the terms Care and Contact are used. The term visitation may also be mentioned as well. According to the Children’s Act of 2005, both parents have full parental responsibilities and rights in relation to a child. There are however certain exceptions.  If there is a dispute regarding that, then the father may have to make an application to the High Court confirming his responsibilities and rights and enforcing them. This can turn out to be a costly affair. You may do it yourself.  If, however, a father has to take that route, it is strongly suggested that he gets hold of an attorney. – Adv. Muhammad Abduroaf LL.B LL. M – Advocate of the High Court of South Africa.

The Court Application

A Notice of Motion should be drafted. This notice is supported with a Founding Affidavit. Sometimes confirmatory affidavits are attached as well. The documents would further be filed with the Office of the Family Advocate. Once the Application is served on the mother, she would then have an opportunity to file her opposing papers (if any). The father will then have an opportunity to reply. Once a date is provided by the Registrar of the Court, the matter would be argued before a Judge who would make a decision with or without a Family Advocate’s Report. Urgent applications can also be made, but here an experienced attorney and advocate are required as time is of the essence.

What the father would basically be asking for is the following:

An Order directing that the parties (mother and father) are co-holders of parental responsibilities and rights in respect of the minor child, in terms of the Children’s Act, 38 of 2005 (“the Children’s Act”) as follows:

  • the parties are co-holders of guardianship over the minor child as provided in Section 18(2(c); 18(3); 18(4) and 18(5) of the Children’s Act;
  • the parties shall be co-holders of parental responsibilities and rights of care and contact in respect of the minor child as referred to in Section 18(2)(a) and (b) of the Children’s Act; and
  • How such rights of care and contact shall be implemented.

The Court will hear the matter and make a decision. If all goes well, the Court would grant the Order confirming the father’s parental responsibilities and rights.

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25 thoughts on “Father’s Parental Responsibilities and Rights to his Child

  1. Hi there. My husband and I are separated. Reason being he was on drugs . He has been unemployed for the last 6 months and is demanding to spend time with our baby. He does nothing to support me or my baby financially as he is unemployed. Please tell me what rights he has to see and spend time with our baby? If he does take me to court what are the chances of him getting rights to seeing baby even though he is unemployed and cant support us?

    1. Good day. Maintenance and contact rights are two separate issues. It is best to have them resolved by the Children’s Court and Maintenance Court. With regard to contact, the court looks at what is best for child.

  2. Thank you for your feedback. In the article above, it states the reasons a father can request a surname change of a minor child. In the case of a mother who had a child out of wedlock and gave the child the father’s surname, but would like to change the surname…what reasons would the court consider in order to grant her request?

    1. You are welcome.
      A reason could be that the child always used the mother’s surname and that the child himself wants the mother’s surname. It is hard to guess as each case is different. It would be best to consult a lawyer to advise on your specific facts and circumstances.

  3. Good day

    My sister and the father of her child are not married and she made the misake of allowing the child to be registered using the father´s surname when the child was born. No cultural arrangements have been made between the two families to allow for this either. Instead, the father and his family insist on making decisions regarding the baby without consulting the mother of the baby and they use the fact that the child has his surname, to undermine her role as the mother. What recourse can she take to protect her rights as a mother?

    1. Good day
      They need to see a qualified social worker, psychologist, or mediator to assist in working out a parenting plan. If that does not work, then the court may be approached.

  4. Hi
    I need advice i have 2 kids with my husband (in the process of separating) we normally shared our kids but he tried to commit suicide can i refuse him access to the kids?

    1. Good day
      It is best you speak to a social worker on this issue. You need to do what is best for the kids. However, refusing him contact may not be best. The Social worker would know best.

  5. Hi,
    I have been dating a girl for the past 8 years, and we have a 6 months old baby boy. The mother and her family don’t want me to see him. and I am not on the child birth certificate.
    I just want to be there for my son, what can I do?

  6. I have a baby with my ex and I want to know if he request visitation rights via court can I supervise those visitations as I don’t trust him with the child alone.

  7. Good day,
    I have been married for 15 years and have an 8 month old baby girl. Our marriage broke down a few months back.
    My soon to be ex wife allows me access to the baby, but only at her place of residence. I am not allowed to take the baby out, or do anything with her. This is quite awkward for me, hence I don’t get to spend that quality time with my child.
    What are my rights in this regard?

    1. Your and your ex’s rights are prescribed by what is in the child’s best interests. You would know what is best for your child. If your ex does not agree with you, then the divorce court would have to decide what is best.

  8. i have a six year six year old girl that i received before marriage with another woman.
    Her mom kept on threatening me saying i will not get children to my wife.
    She took me to maintenance court even though i was maintaining continuously.
    i think this is no longer in the best interest of the child instead she is fighting her personal battles using a child, because i am being called to appear in court time and again.
    She sometimes don`t bring necessary documents required by the court in order for the case to commence and that leads to postponement of the case, and i am the one who is suffering because i have to leave work and drive to court, i am not even getting travelling allowance, i only receive taxi fair.

  9. My husband has a 7year old son and he hasn’t seen his son for past five years due to the mother everytime making excuses or taking his son away when it came to him visiting his son. We would like to see him and let him get to know his father and his step brother. She got an affidavit a few years ago saying that he tried to run her over with his car which was a total lie. How do we move forward so that my husband can get visitation rights to his son.

    1. Your husband should approach a lawyer and have the matter taken to court. At the end of the day, your husband require’s a court order.

  10. Good day

    I have been living with my common law wife for the past 3 years and we have a 2 year old boy. She has decided to leave the marriage and she has taken the child to her parent’s home. She does not stay with the child because she stays closer to her work place and only sees the child once a month. I want to file for full custody of the child as the biological father. What are my chances of winning the court battle?

    1. Good day

      The court decides on the matter as to what is best for the child. If you can prove that if the child lives with you, it would be in the child’s best interests, the court would then order so.

  11. Hi, I’d like some assistance regarding my 4 year old son. I have no parents so I don’t have stable accomodation, I’ve lived with my gran who’s been assisting for the past 2 years but threatens to have my son taken away by social workers because I don’t work or have income , nor do I have a “home”. The last thing I would need to happen is for me to seperate with him. She – my gran- and his father’s family are planning on fighting for him as to which they’ve chased out us and we’re currently living with a friend , just so they win him over by saying we don’t have a home. Please assist with what i could do to keep my son because I know the separation will only harm the both of us. They’ve even tried to physically forcefully take him away from me of which the only thing they do for him is pay half his crèche fees and nothing more.

    1. Good day
      You are the primary caregiver of the child. The only way they can take him away from you is via a court order. But then they have to prove it is best for the child. So, unless Social Welfare comes to your door, or you receive a court order, they cannot take your child from you.

  12. i impregnated a someone and she does not want my child to use my surname(we are not married) also she is restricting me to see the child . Am i not allowed to make the child use my surname as a father of the child?

  13. Hi there,

    I was married 3 years and 10 months a go with an anti-nuptial with an acrule.
    We have a 2 year and 7 month old daughter.
    How do I go about applying for a divorce, what are my custody rights and what am I entitled to with regards to maintenance?

    Kind regards
    Germaine

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