Father being refused contact to his child! What are his rights as a Father?

Father being refused contact to his child! What are his rights as a Father?

Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much.  The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.

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However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child.

Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child.

Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:

  • at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else.

However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half.

The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

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43 thoughts on “Father being refused contact to his child! What are his rights as a Father?

  1. A man pays child support but never get to see his kids he stays in bloem and she moved to betlehem and now she want more money

  2. Hy please help, my baby mama denies me to see my child. As fo the matter of fact , everytime she would tell me that i should not bother myself asking hw is the baby is. We break up after the baby was two months. But she tells me that the baby needs clothes ect… nd i try all my best to do something for the bby as im unemployed. But when i ask her to bring the bby she never dd.

  3. I have a 3 months old baby and the mother refuses to let me see the child and she also doesn’t want me to contribute towards his upbringing. I was only allowed to send her money for the first 2 months and then she said I was not the father but I pushed until we did the DNA which confirms I was the father. The problem is she is now living with a new man and has she has introduced the child to her new boyfriend and she is threatening to take the child to her boyfriend s place which I don’t know. Please advise me.

  4. I am currently married. My wife forced me out the house due to accusations of an affair which did not occur.
    We are still married yet she only lets me see our daughter on her terms and her times.
    There are days that I don’t see my daughter. When I do see my daughter my wife dictates the duration of time I get to be with my daughter.

    No court/divorce order has been issued to me. I only received a typed out email from a her lawyer (no attachment or formal document) stating the instructions to which I must follow regarding communication with my wife and visitation rights of our daughter.

    I am confused on how to handle the situation. I would rather make things work with my wife. But she does not want to talk to me.

    My daughter cries when she sees me because she misses me so much and she begs me to stay and not leave.
    I want to see my daughter more often, but how?
    Is my wife event allowed to do this?

    1. Good day
      We advise you to approach an attorney to assist you in resolving the issues. Both parents must act in the child’s best interests. If the mother does not have good reasons for her conduct, then the court should step in. Her lawyer believes she is justified it seems.

  5. Good morning

    On the 12th July 2019, I got a WhatsApp text at 08:H50 notifying me that my ex girlfriend gave birth on the 11th July 2019. I asked for a picture and you never sent me any.

    As pumped and excited as I was I then called my mother to let her know that she was going to be a granny. Immediately after the phone call with my mother I then called my Manager at 09:00 to request permission to leave the office so that I could drive to Witbank to see my daughter. I was in North Riding one of Randburg’s suburb the time I made the request.

    I called about 5 to 6 times as I was about to leave the office and she didn’t pick up any of my calls. When I got to Mall of Africa for a quick stop to buy something for “my daughter” I then decided to send an SMS at 09:50 which read
    “Which hospital are you? I’m on my way”

    I received an SMS at 09:59 which read
    “Don’t come Jabulani” just as I was about to pay for the clothes and basics necessities of a child since I didn’t think it was wise or sound minded for the “father” to show up empty handed.

    As scarred as I was having to leave the trolley at the checkout or till counter I then called you again asking for an explanation as to why she didn’t want me to come. Her response was “Why do I want to come” as stupid as that response was, I tried to reason with her by asking why couldn’t she put aside her sudden hate for and allow me to see “my daughter”. The response I got, if we can even call it that, was vague.

    I sent her a WhatsApp text at 10:23 as I got home of which she didn’t bother responding to but instead she then deleted or blocked my phone numbers, because all of a sudden her WhatsApp profile picture went blank.

    As painful as it was having to make the decision, I then decided that I’ll exonerate myself from taking any responsibility which was to come with raising the child.

    That means no paying for damages or maintaining the child, because the way you were acting towards me I clearly couldn’t be your baby’s father.

    Does she have a case trying to take me to court for alimony despite her attitude towards my attempts of reaching out to her?

    1. Good day

      No matter the issue between the mother and father of a child, both parents have a legal duty to support the child. Even if a parent does not have contact with the child. If the parent wants contact, that parent must approach the court.

  6. On the 12th July 2019, I got a WhatsApp text at 08:H50 notifying me that my ex girlfriend gave birth on the 11th July 2019. I asked for a picture and you never sent me any.

    As pumped and excited as I was I then called my mother to let her know that she was going to be a granny. Immediately after the phone call with my mother I then called my Manager at 09:00 to request permission to leave the office so that I could drive to Witbank to see my daughter. I was in North Riding one of Randburg’s suburb the time I made the request.

    I called about 5 to 6 times as I was about to leave the office and she didn’t pick up any of my calls. When I got to Mall of Africa for a quick stop to buy something for “my daughter” I then decided to send an SMS at 09:50 which read
    “Which hospital are you? I’m on my way”

    I received an SMS at 09:59 which read
    “Don’t come Jabulani” just as I was about to pay for the clothes and basics necessities of a child since I didn’t think it was wise or sound minded for the “father” to show up empty handed.

    As scarred as I was having to leave the trolley at the checkout or till counter I then called you again asking for an explanation as to why she didn’t want me to come. Her response was “Why do I want to come” as stupid as that response was, I tried to reason with her by asking why couldn’t she put aside her sudden hate for and allow me to see “my daughter”. The response I got, if we can even call it that, was vague.

    I sent her a WhatsApp text at 10:23 as I got home of which she didn’t bother responding to but instead she then deleted or blocked my phone numbers, because all of a sudden her WhatsApp profile picture went blank.

    As painful as it was having to make the decision, I then decided that I’ll exonerate myself from taking any responsibility which was to come with raising the child.

    That means no paying for damages or maintaining the child, because the way you were acting towards me I clearly couldn’t be your baby’s father.

    Does she have a case trying to take me to court for alimony despite her attitude towards my attempts of reaching out to her?

  7. Good evening
    My son is 2months old. I don’t have work but I stay with my parents who provide for me and my baby. The father of my baby is not staying with us. He doesn’t help with milk, nappies or any money for the baby’s Dr visits but he wants to see his child and tell me how to raise my son. When I was pregnant with my baby he did send me messages that he hope I will have a miscarriage, he wasn’t ready for a baby but now he wants to be in our lives and I don’t want him back. Can he take my child away from me? Can I refuse him to come to my house? Please help?
    Thank you.

    1. Good day
      He cant take the child away from you. Both parents will have to act in the child’s best interests. If it best for the child to know its day, then that should happen. We advise that you urgently speak to a social worker to advise you what is best to do under these facts.

  8. Good day

    I was customarily married for 5 years to the father of my child because he was cheating on me I decided to leave with my 2 years child by then. He is maintaining the child but he hardly visit the child, he comes to see the child once in a year and whenever he comes he takes my child to his girlfriend. Now the child is 7 years. My child is forced to call his girlfriend Mom. Does the law support this please help because my child is confused!

    1. Good day

      The law looks at what is best for the child. If you feel that his conduct is not in the child’s best interests, you may consider approaching the children’s court for assistance.

  9. Good day, I am 9 weeks pregnant and my boyfriend of 4 years asked me to get an abortion because he is not ready for a child of which I refused since it is against my believes. I have made it very clear to him that I am keeping the baby and I don`t need anything from him. I want to know what can I do to protect my rights at a later stage when he decides to change his mind. This has hurt me and scarred so much, I don`t think I want him to even see the child. I will be raising this child alone so will the law protect me at a later stage? or will he be allowed to just walk in after years and claim his rights as a father when he made it very clear that he does not want the child. Please help

    1. Good day
      Unmarried fathers don’t have automatic parental rights. Basically, they need to be involved or try to be involved in the child’s life to obtain rights. The law, however, looks at what is best for the child. So should the father at a later stage want to get involved, the law would need to decide if it is in the child’s best interest.

  10. Hi there I just need to know where I stand… Okay I’m a single dad where the mother of my child left me for my best friend.. We had a arrangement how we going to work with the visitation om my 1 and half year old boy… I’ve asked to put my kid in school and we had a agreement that I see him every 2nd weekend then the 13dec I got a msg they going on holiday and taking my kid with and I asked will I see him for Christmas. Mother reply was no they on holiday.. Then when school started I payed school fees and then figured out my son not at school I went to the school and the teacher told me the grandmother took him out of school permanently. That’s when I msged my ex and asked she said they moving to Balito and I said what about my son and she said it best for his health… When I asked when can I see him she always said she’s broke.. I’ve sent emails for over 3months and no response when I can see my kid the never went on holiday the moved… Without me knowing he’s out of school or the move… Then they moved back… And I came up with a agreement again and started paying again for school fees and his needs then she broke our agreement we had on paper between me and her by taking my son out of school and she went away with her boyfriend and left my son with the grandmother and I wanted to go fetch him I had the police with me to fetch my son but they still denied my son keeping him away from me. I just need to know as I’ve been paying his school fees and milk and diepers as we discussed in our agreement that she bridge. Where do I stand with my rights.?

    1. Good day
      You have rights to your child. We advise you to approach the children’s court where the child lives for a contact and visitation order.

  11. I am was in relationship with the father of my 7 year old son, he left us when he was 1 year old . He is not visiting nor calling the child.
    He is the only one who got access to phone us …. He is ignoring our phone calls telling me he couldn’t answer because his partner was there and she normal answers his phone (to clarify this … I once called him and she answered ….don’t remember the axact date but was early Nov … stating that I must back off and now my lane.)
    He came and I told him, then he says I must stop calling, sms’ing because it one of the reason why he not coming to visit our son.

    He comes over to my place after 3-4 months randomly, unannounced and empty handed.

    His not contacting our Son .So I gave him the advantage of defined contact ( 7 PM ) maybe twice a week so that he can plan ahead but he disagree , telling me he can do whatever he likes , I can’t tell him when and where to do what. I tried to provide him with certainty and routine for the child.
    He continue calling late normally after 9: PM or even at 22:00 that is when I decided not to answer my son’s phone.
    He cannot agree on parenting plan which I propose. i. e lack of communicating on a regular basis with the child in person by telephone or Skyper.

    Now he went to court saying i am denying him an access for his child .
    Please advice

  12. Good I have a problem here I once bet the Mather of my child and it’s not thing which m proud of.and yet she doesn’t want to see my child and release to visit me.and I want to do and a educational plan for my child.but I can due she refuses to fix our child birth certificate.and have my name on it

  13. Hi there
    I have a 1yr old boy whose mother and I have been at each other’s throats but came to an understanding despite being sent to court for maintainance. I’ve sent the child some necessities during the holidays and that was on my birthday, so that he can go see his grandparents in Lesotho which he does not have a passport for. Other thing is visitation rights, I only see him when I’m off from work with the supervision of his mother but would like it if she would allow me access with my child for several hours and then sent back to her. How do I get that access to be granted?

  14. Good Day

    Is it possible for me to see my child?

    I was in a relationship with my child’s mother for 13 years and than she got pregnant and things changed she left me.

    Now she refuses to let me see my child…Please assist me on how to go about this situation …

    I really want a bond with my child but how can I ?

    I have tried to go there ask him for a day and he would smile and than she would touch me and say no he won’t go

    Please help his only 8 yrs old and I don’t want him to think that I don’t wanna spend time with him

    1. Good day
      We advise that you approach the Children’s Court in the area where the mother and child live for visitation rights. Otherwise, it would be best you speak to a lawyer to take your case on.

  15. Good Morning

    I left my partner of 7 years our daughter is 5 and I dont want him to see her unsupervised at this point possibly ever. He was abusive physically and emotionally he is also bipolar and does not take his meds along with abusing alcohol.
    Do I have a right to withhold visitation?

    1. Good morning
      You must act in your child’s best interests. We advise that you approach a social worker urgently on this issue for advice or approach the children’s court. We would not want to advise on such a serious issue which affects parents responsibilities and rights.

  16. Hi.

    I need some advise. I got maried and had a child at 21 and took care of them for 4 years. We devorced and she moved to.South Africa while I was in Namibie. I was broken with depression when I find out she moved on in 4 months. I made an impulsive dissition to send her a message that.I will not be involved in their lives anymore. I was broke and depressed for almost 2 years. I finally got better and decided that what I was doing was wrong. I engaged with my ex wife and pleaded for a year to get back in my childs life. She wanted the outstanding maintanance but couldnt affored it. We privatly came to a conclusion of 20000 for reconsiliation and I can only pay 2500 per month at most. That should incl everyrhing. She agreed and said for the year 2018 she will allow me to do so but 2019 she will raise the price to the correct number. Well I have stayed true to our agreement and even safed up to vissit my child 2000km away from me once. Now the year isnt over, and she and her boyfriend wants more money. Her boyfriend pays alot of my childs expenses and my exwife continue to keep it against me. She doesnt ask my concent whenever she buys things to see if I can chip in. She just buy and send a message of what I should pay. She have been promiseing me a year that she will send slips of the expenses of my child but she doesnt. Now they refuse me to talk to my child. We had an agreement of skype because she is so far away but now they refuse any contact. If my exwife didnt have this boyfriend she wouldnt have been able to take care of my child. Are the boyfriend allowed to cut any contact with my child? I have moved to Capetown and they are in Mpumalanga. What can I do if I cant affored to go to their childrens court.

    Thanks.

    1. Good day

      See that the child lives in Mpumalanga, you need to approach the Court there. The other option is to get a lawyer to assist, but that would also cost and you may still need to go to court.

  17. Good day, my son was in a relationship for 2 years, the girl cheat on him and disappear, she send him a message that she is 12 weeks pregnant and she is 100% sure he is the father. The baby is born now and he would like to do some DNA test, the girl refuse to do the test, she say she want nothing from him. Do she have the right to refuse to do such test.

    1. Good day
      She can refuse such a test. He may, however, approach the Court to force her to do the test with the child. The Court would decide what is best for the child.

  18. My daughter’s father should he win the case if he do protectin order when he don’t look after her child when he left me while am pregnant? Also am orphan

  19. I am not in a relationship with the mother of my minor child (son/3 yrs old now in 2018). For at least a period of 3 months in 2015 I’ve been providing for the child by way of asking the maternal grandmother (since she is the one taking care of the child on a daily basis because the mother of my child is attending school in Bloemfontein 300km away from the primary residence of the child) of my son to list the needs of the child on a monthly basis and then I will deliver as per list. This came to an end when I was summoned to appear at a local court for Maintenance of the child. I was in attendance and they requested R2000 Maintenance and eventually I was ordered to pay at least R1000 considering the needs of the child. What shocked me is the fact that all along I was under the impression that the child stays with the maternal grandmother at the local residence as stated on the file hence local court had jurisdiction as indicated.
    1. I was wrong the child have a passport and stays in Lesotho.
    2. My personal details are not reflecting on the child’s Unabridged Birth Certificate.
    3. My consent was never required when the minor child cross the borders to Lesotho despite the law/rules introduced by The Dept of Home Affair as of 1 June 2015.
    4 . Every time I wished to fetch the child I had to wait for him at the Port of Entry (The South African side”.
    5. Because the child is accompanied by the grand-mother the latter has to produce Parental Consent Affidavit (Valid for 6 months) every time I come to fetch the child.
    6. Last week I informed them timeously that I am coming this week to fetch the child and I was told that Parental Consent Affidavit has expired and the Mother is still at school (Is that supposed to be my problem because I was never consulted in the first place that the child will or stays in Lesotho).
    7. I took the child’s ID number to SASSA and my finding was that the child is a beneficiary of Child Support Grant despite me paying for his Maintenance as per Court Order.
    8. The worst part , Maintenance Order points the Grand mother as the applicant ,fair enough, however bank details are those of the mother of my child in which I am supposed to deposit the money.(is this really permissible in terms of the law)

    I’ll appreciate your advice.

    Thank you.

    1. We advise that you approach the Children’s Court for a Contact and Care Order regarding your child. However, if the child lives in Lesotho, you may have to approach the Court that side.

  20. I worked out the country 4 months, wife had control of finances and upon return found effectively nothing left of probable 50-60k. Upon trying to find answers got slapped with restraining order. This effectively put me ppennyless on street after providing for 18 years.

    Being homeless I failed to defend restraining order and it became permanent (note for verbal/emotional abuse-nothing physical and zero previous history).

    Now she has left province after me being forced out on street by her actions, claiming “abandonment” and refusing me any contact with the minors. She lives with sister (husband is lawyer/advocate) 1400km away, having ensured an unfair advantage in future proceedings.

    Having effectively bankrupt me and demoted me unemployed due to finances, I am left penniless and zero contact, though omnidirectional plenty attempts to contact has been made. It is essentially 5months with no contact, even the school where children are denies their presence.

    What can I do to reestablish contact from so far, and what can be done. PO says nothing about not being able to contact children.?

    At what point will I commit a crime?
    Would her refusing contact become a crime?
    What becomes of the children’s right to contact with their biological, still married father?
    When and how can my rights be enforced, even though unemployed?
    On what grounds will she be able to exclude my rights?
    Where and how do I go about getting legal assistance due to temporary unemployed state?

    Thank you

    1. Your situation is unfortunate. Seeing that the children is so far away, she is making it difficult to enforce your rights. You should however approach the children’s court where she and the children are residing. A local court may not have jurisdiction. Pop them a call and see what they say. But act fast.

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