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

  1. Good Day

    I have a concern. My ex and i have separated for 7 months and share a 5 year old son. However my ex has been very emotional mental verbally and sometimes physically abusive towards me.
    Last year i have went to family court to set up a co parenting plan as to where our son must visit the father every second weekend and holidays. I had to boundaries that no Third Parties to be present when the son is in either parents care. Also the father is not allowed to take the son out of town as to his history of taking his kids to unhealthy environments
    After our first meeting we were told to communicate on when to start with the plan. However we never agreed on a set date we communicated but most of the time the father was verbally abusive when communicating to me. I then started ignoring him.
    Last year19 December @16H00 he had the son for the afternoon and the son was suppose to sleep over. The evening at 10H20 he brought the kid home claiming he did not want to sleep over. He also gave him a pack of raw meat as he did not provide him with food for the amount of hours. the son then told me but his father is lying he did not want to come home. I then went over we had a few words and the next morning i was called and told not to bring the son over again. I then did not sent him over and now he went seeker help from his laywer claimimng that i am keeping the son away.
    He also threatened me that i wil pay all his legal fees and he will make sure i loose everything even if it means that he will put me in Jail.

    Can and may his laywer make discision on his behalf without my consent or concerns?

    his father has a history of multiple woman and my main concern is that our son may not be involved in these multiple affairs , because what morals and values are we then teaching our son?

    1. Good day. Regarding the question, “Can and may his laywer make discision on his behalf without my consent or concerns?”, the answer is no. However if the matter goes to court, the court would decide what is best for the child concerned.

  2. My right as a biological farther pertaining visitation to my son are being denied not by his biological mother but by family members where they currently living. Please can someone advise in how I should proceed on this matter.

  3. M is a minor child born to unmarried parents, Xola (father) and Yanga (mother). The
    biological parents were never married to each other, nor did they live together in a
    ‘permanent life partnership’.
    Yanga is an academic at Rhodes University. Xola is currently employed at a local
    coffee shop. Xola paid ‘damages’ in terms of customary law for M and sporadically
    contributed financially to M’s well-being.
    In January 2022, Yanga received a job offer from Harvard University. She plans to
    leave the Republic with M in December 2022. M’s 5-year visa has been approved,
    and flights are booked to the US.
    Xola claims he was unaware of M’s upcoming departure from the Republic. He is
    furious and immediately lodges an application at the Makhanda High Court to stop
    Yanga from departing with M without his consent. Yanga claims she does not need
    consent from anyone to leave with her child!
    Does the father have parental rights and responsibilies

  4. Good day, I’m in my 20’s currently unemployed and having a 6months old baby. Before the pregnancy I stayed with my parents. After we found out we expecting, the father of my child asked me to move in together as he wanted to make things easier and having a bond with his Lil fam. And promised to take care or me and the Baby.

    We stayed 3months together before the child was born. He never assisted me in buying anything for the unborn baby, I bought and my sister helped me also. To Fast forward, the baby is 6months now and he never gave maintenance and still doesn’t buy anything (not even soap or pair of socks) for the baby. He is employed and has a well paid job, senior position. My sister and mother are the once that’s assisting in everything for the baby.

    Before the child was born I told him the child have to have my surname, as we are not married. He was against it and forcefully went to Home Affairs and registered the child with his surname. I remember asking for the child birth certificate when the baby was a week old, as my mother (grandmother of the Baby) wanted to put the baby on her Medical aid) . He said he doesn’t know where it is, but he was the one who had it along. It’s been 4months that my child is without a birth certificate, he lost it.

    My mother and sister has been supportive and buying everything for the my Bay before birth till today(6months). And him dololo while we live together and creating an impression of being a supportive father to the people.

    I would like to change my Baby’s surname to mine. What reasons would be considered in order to grant me a request to change my Baby’s surname to mine.

  5. Hi There

    I have a four year old son with my ex boyfriend, we were never married, I moved out when my son was 2 years old. I agreed to do everything 50/50 when it comes to expenses even though I cover was more than 50% and moving my son from home to home so that my son can adjust to the change and to ensure that he is happy, which worked fine when he was a 2 year old but now he is getting older and starting to get confused and he’s basically up and down, he i starting Grade R soon and would like more stability, in a routine but still see his father, as I would never keep him away from his son. How do I go about this and what are my rights as a Mother since the father undermines me all the time.

  6. My son now 7 years old has been kept away from me for 7 years i made contact the with the mother 3 times to see my child,she is married for 7 years and her husband influences her decisions regarding my child and i as the biological father feels helpless as i stated to her that her husband has no say over my biological child he was informed by the mother of my child that my son has me as his father.But i feel that my rights as dad are being infringed and that he has more say then me.My boy has taken her husband surname that i think is not allowed and she is refusing to show or give me my child birth sertificate..please help

  7. Hi there,

    I’ve been married for almost 3 years and my husband and I have a 1 year old together.

    My husband has never really supported our child and i have been taking care of the child all by myself. My husband keeps making excuses that he never gets to spend time with our child but when we are home he never makes time with her and demands to spend time at his mothers house instead of where we reside with him. Instead of spending time with our child he wants the child to have a motherly bond with his mother. I don’t trust his mother with our child as she not a good influence. I have communicated it to him and sometimes refuse our child to go at his mothers house and whenever i refuse he throws tantrums and threaten me. He has now served me with a letter about his rights and do not know how to go about. Please can you provide urgent advice

  8. Good day sir/ma’am, I am a 25 year old male, I’m the farther of a 2 year old daughter. Me and the mother separated, she lived with me before conception and after, she has a very unstable living situation with her parents and she’s always entertaining other men. She disappears every time things gets confrontational and my daughter is left longing for her mother with tears in her eyes. I’ve got a job and I’ve been the primary and only care giver to my daughter. The mother left and said she’s coming back with the police to take my daughter from me, mind me she is still not back it’s been 2 days and it’s not the first time. What advice can you give me regarding this situation? I really don’t want to loose my daughter and I also refuse to have her live in the situation her mother is living in, because she has no stable home. So I need advice or help please!

  9. Hi
    I have 2 kids that I financially supported fully whilst they where still in their mother womb up until February.I stop to give their mother money monthly .Reason being she was using my kids money to support his boyfriend children whom are in a same age with mine.They are 12 and 5 years old whom their father does not work.I still support my kids by buying clothes for them at least 3 times a year.1 of my child is on my medical aid the other one is not .My kids stays at her mothers home whom she seldom visit or sleep there.Know I am being told by his sister and her that I must stop seeing and communicating with my kids whom I dearly love and they love me too.And know they introduce his boy friend to kids brain washing them that he is their father.I am staying and working in Port Elizabeth and they are in King Williams Town.I was visiting them 2 to 3 times a year because their mother does not want them to come to my place.I only spend two days with them and after that their mother will tell me to leave her mothers house and go back where I come from. They told me that their mother neglect them ,and I can see that they are being neglected. Please help me I really want to be part of my children life.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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?

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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.

  20. 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.

  21. 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?

  22. 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

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