Call us today

Make an Appointment with us

Visit our Online Legal Shop

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

ByOur Lawyer

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.

We are conveniently located in the Pinnacle Building, in the Cape Town CBD. Click here to call us on (021) 4243487 or send us an email.

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.

Should you require any other legal services and advice, not related to family law, visit Private Legal.

Please share. Someone may find it useful.

About the author

Our Lawyer administrator

Legal Advisor for Our Lawyer (Pty) Ltd Call 0214243487 For appointments: https://www.ourlawyer.co.za/advice

23 comments so far

Petrus SteynPosted on8:43 pm - Jul 20, 2017

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

    Our LawyerPosted on6:15 pm - Jul 22, 2017

    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.

Clifford MokoenaPosted on12:04 pm - Jul 31, 2018

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.

    Our LawyerPosted on12:51 pm - Aug 1, 2018

    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.

Mpho chaukePosted on5:44 am - Aug 13, 2018

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

Hannetjie de LangePosted on10:52 am - Sep 12, 2018

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.

    Our LawyerPosted on3:22 pm - Sep 12, 2018

    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.

Our LawyerPosted on10:26 am - Sep 19, 2018

We advise he approaches the children’s court to change the divorce order. They would make a decision as to what is best for the kids.

CapetownPosted on5:58 pm - Oct 10, 2018

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.

    Our LawyerPosted on5:52 am - Oct 15, 2018

    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.

karenPosted on9:33 am - Nov 2, 2018

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?

    Our LawyerPosted on12:04 pm - Nov 2, 2018

    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.

GreggPosted on2:43 pm - Jan 16, 2019

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

    Our LawyerPosted on5:48 pm - Jan 17, 2019

    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.

LesibaPosted on2:40 pm - Feb 11, 2019

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?

JanPosted on11:48 pm - Feb 13, 2019

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

Seh ShanduPosted on9:28 am - Mar 12, 2019

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

Leave a Reply

Call us now