Father battles for 3 years to finally see his child. This he did with the help of a social worker, lawyer and the court. He now has regular contact to his child.
Custody, Contact and Guardianship are parental responsibilities of all parents. Once the child is born, both parents not only have a right but a duty to form part of a child’s life. This is also the right of the child. Therefore, a parent cannot deny the other parent from exercising his or her parental responsibilities and rights. The Courts have a duty to ensure that a child’s best interests are met when approached. It is therefore of paramount importance that parents ensure that parental responsibilities and rights are exercise and enforced where necessarily. This includes the responsibility of paying child maintenance.
Before we head into the article, let us first outline what the law says on the parental responsibilities of parents. In the end, we will deal with the law regarding the inclusion of a father’s name on the child’s birth certificate.
Read further to what the Children’s Act 38 of 2005 says about parental responsibilities and rights. You can skip this section by clicking here.
The Children’s Act 38 of 2005
Section 18 of the Children’s Act 38 of 38 2005 states the following:
“(1) A person may have either full or specific parental responsibilities or rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a Child, include the responsibility and the right-
(a) To care for the child;
(b) To maintain contact with the child;
(c) To act as guardian of the child; and
(d) To contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must
(a) Administer and safeguard the child’s property and property interests;
(b) Assist or represent the child in administrative, contractual and other legal Matters; or
(c) Give or refuse any consent required by law in respect of the child, including-
(I) consent to the child marriage
(ii) Consent to the child adoption;
(iii) Consent to the child departure or removal from the Republic;
(iv) Consent to the child application for a passport; and
(v) Consent to the alienation or encumbrance of any immovable property of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).”
Father’s right to his child
If you are a parent and confronted with a situation where you are denied rights to your child; read on. Notwithstanding this article has been written in relation to the rights of a father; a mother can find it useful too.
Mike was a typical office worker, age 25. He lived with his parents and was studying part-time to earn his teaching degree. This is where he met Mary, on a Saturday morning, when visiting the campus library. She was in her final year of medicine. One thing led to another and 6 months later, Mary fell pregnant. Marry came from a wealthy family. Her father was a businessman and her mother a psychology professor. What’s more, Mary was the only child. When her parents found out who the father was, they forbid her to see him. According to them, he was unworthy of their daughter.
Read on to find out the meaning of Care and Contact as provide for in the Children’s Act 38 of 2005. You can skip this section by click here.
Meaning of Care
The Children’s Act 38 of 2005 defines care as follows:
Care in relation to a child, includes, where appropriate-
(a) Within available means, providing the child with-
(i) a suitable place to live;
(ii) Living conditions that are conducive to the child’s health well-being and development; and
(iii) The necessary financial support;
(b) Safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
(e) guiding, directing and securing the child education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child age, maturity and stage of development; guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child age, maturity and stage of development;
(g) Guiding the behaviour of the child in a humane manner;
(h) Maintaining a sound relationship with the child;
(I) accommodating any special needs that the child may have; and
(j) Generally, ensuring that the best interests of the child is the paramount Concern in all matters affecting the child;
According to the Children’s Act 38 of 2005, contact means the following:
Contact in relation to a child, means-
(a) Maintaining a personal relationship with the child; and
(b) If the child lives with someone else-
(I) communication on a regular basis with the child in person, including-
(AA) visiting the child; or
(Bb) being visited by the child; or
(ii) Communication on a regular basis with the child in any other manner,
(AA) through the post; or
(Bb) by telephone or any other form of electronic communication;
Mike tried very hard to find out how the pregnancy was going along. All cell phone calls were blocked and he was refused access to Mary’s home. He felt obligated to make some type of contribution towards the gynaecological and other medical expenses. He spoke to his family about the situation, and they too were very stressed out. This would be the first grandchild and experienced a profound sense of responsibility.
They met Mary once and liked her very much. She was smart, pretty and easy going. They then consulted with a family lawyer. The advice was to wait until the child was born and then to enforce parental responsibilities and rights. The lawyer, however, wrote a letter to Mary saying that Mike wants to be part and parcel of the child’s life, even before the birth. Furthermore, Mike wants to contribute towards the medical expenses incurred thus far and any future expenses. Needless to say, the letter was ignored. The Lawyer then advised that they wait until the child was born and then enforce his parental responsibilities and rights.
The Birth and Registration
Obviously, Mike was not at the birth of his child. That saddened him very much. Mike then found out through a friend of Mary that she gave birth to a healthy baby boy. The name Mary gave him was Mark. That was great news for Mike. His parents were also very happy. When Mary registered Mark at the Department of Home Affairs, she did not stipulate that Mike was the father. As Mike thus far did not spend any money on the birth or on his son, he opened an investment account where he deposited money into each month.
Mike then set up a meeting with his lawyer. He explained to him that he wanted to see his son, who was almost 2 months old. The lawyer knew this was a sensitive matter, in that nothing was known about the current circumstances of Mary and Mark. They needed to approach this matter very delicately. All that Mike wanted at this stage was to see his son.
The lawyer then wrote a letter to Mary asking that his client, Mike, could see Mark for a few minutes at a convenient place and time for Mary. The lawyer made use of the office of the Sheriff to serve the letter to ensure that Mary receives it. On receipt of the latter, Mary showed it to her father. Her father then met with his lawyer. They replied to the letter advising that Mary wants nothing to do with Mike. According to them, it would not be in the child’s best interests for Mike to make any contact with him. They advise that should Mike persist in wanting to meet with Mark, they are instructed to launch an application to the court for harassment.
Mikes’ lawyer then again advised him of his rights. The difficulty that he had was he knew nothing about the personal circumstances of Mary and Mark. All he knew was that Mark was about 4 months old, living with Mary and her parents. He did not know whether Mary was working or studying, whether Mark was being breastfed and so on. It is therefore difficult to enforce one’s rights, or demand for rights to be enforced under those circumstances. Mike’s lawyer then recommended that a social worker is approached for advice and support on this matter. It is possible that the social worker could mediate the matter.
When Mike met with the Social worker he told her everything he knew about Marry and Mark. However, information after the birth of Mark was limited. Basically, all he knew was that he was a boy. He did not even know his son’s date of birth. The Social worker appreciated the sensitivity of the matter. She agreed that due to not knowing what the actual circumstances were, the way forward is challenging. Although Mike is the father of Mark and has parental rights, that should not be enforced without considering Mark’s best interests.
The Social worker then agreed that she will try to contact Mary. She sends Mary a letter advising her that she was instructed by Mike to arrange contact between him and his son. Needless to say, Mary did not reply to the letter. The Social worker subsequently decided to call Mary. Mary answered and said she doesn’t want to speak to the social worker and that she must leave her alone. The Social worker then met with Mike and his lawyer, and they concluded that the only way forward was to ask for the help of the Court.
The Court Application
Mikes lawyer then drafted an Urgent Application to the Western Cape High Court. The relief requested was for reasonable supervised contact until Mark is a year old, and then unsupervised contact. What was also requested, was an Order that the Office of the Family Advocate investigates the matter and provide a report to the Court? The Application was filed and served on Mary. Needless to say, she appointed attorneys to oppose the application.
Mary submitted an opposing affidavit. Her argument was that Mark does not know his father, and it would be best that he only has contact when he is considerably older. But for now, contact rights should be suspended. Mike obviously replied with a replying affidavit.
First High Court hearing date
On the hearing date, the Court played it safe. The Judge first wanted the Office of the Family Advocate to intervene and provide a report for the Court to consider. Mike’s advocate did not argue with the Judge on this point. The matter was then postponed for a period of 3 months for the report.
Family Advocate’s Report
On the return date, the Court had before it the report of the Office of the Family Advocate. They consulted with Mike and Mary, and it so happens, they came to an agreement regarding phased in contact rights. It was agreed that contact would be exercised at her home, once a week for the first 2 months. Thereafter contact would be every week until Mark is a year old. Once he turns 1, Mike would be able to take Mark with to his home for a period of 4 hours. Further contact would then be relooked at once Mark is 2 years old. At this point, overnight contact may be considered.
Mike also offered to pay child maintenance and put Mark on his medical aid as a beneficiary. Mary was happy to hear this as she was the one who solely supported Mark. Her parents were getting fed-up with all the expenses involved.
Next High Court date
The Judge was very happy that the parties came to an agreement. She subsequently made the agreement and Order of Court. According to the report, Mike met Mark at the Office of the family advocate and spent about a half an hour with him. The report also stated that Mike visited Mark at Mary’s home and bonded. Therefore, according to the Court, this was the best type of arrangement as the parties drafted their own agreement. If they did not settle the matter, the Court could make an Order, which both parties may be unhappy with or unwilling to implement. The Court, therefore, made the settlement agreement an Order of Court.
Father’s name on the birth’s registry
Mike exercised contact as per the High Court Order. When he requested Mark’s birth certificate in order to put him on his Medical Aid Scheme, he noticed his name was not on it. Mike then approached the Department of Home Affairs for a change of the birth records. Mary co-operated and the changes were made. Mike was now mentioned as the father on Marks’s birth certificate.
This is the law applicable
Section 11 of the Births and Deaths Registration Act 51 of 1992
Section 11 of the Births and Deaths Registration Act 51 of 1992 deals with the amendment of birth registration of a child born out of wedlock. An extract of the Act is as follows:
Amendment of birth registration of child born out of wedlock
(1) Any parent of a child born out of wedlock whose parents married each other after the registration of his or her birth, may, if such child is a minor, or such child himself or herself may, if he or she is of age, apply in the prescribed manner to the Director-General to amend the registration of his or her birth as if his or her parents were married to each other at the time of his or her birth, and thereupon the Director-General shall, if satisfied that the applicant is competent to make the application, that the alleged parents of the child are in fact his or her parents and that they legally married each other, amend the registration of birth in the prescribed manner as if such child’s parents were legally married to each other at the time of his or her birth.
(2) If the parents of a child born out of wedlock marry each other before notice of his or her birth is given, notice of such birth shall be given and the birth registered as if the parents were married to each other at the time of his or her birth.
(4) A person who wishes to acknowledge himself to be the father of a child born out of wedlock, may, in the prescribed manner, with the consent of the mother of the child, apply to the Director-General, who shall amend the registration of the birth of such child by recording such acknowledgement and by entering the prescribed particulars of such person in the registration of the birth of such child.
(4A) An amendment of the particulars of a person who has acknowledged himself as a father of a child as contemplated in subsection (4) and section 10(1)(b) of the Act shall be supported by the prescribed conclusive proof of that person being the father of the child.
(5) Where the mother of a child has not given her consent to the amendment of the registration of the birth of her child in terms of subsection (4), the father of such a child shall apply to the High Court of competent jurisdiction for a declaratory order which confirms his or her paternity of the child and dispenses with the requirement of consent of the mother contemplated in subsection (4).
(6) When the court considers the application contemplated in subsection (5) the provisions of section 26(b) of the Children’s Act shall apply.
Although Mike and Mary never became a couple again, they learned to accept the reality of their situation and tried to make the best of it. If there were any issues, they always referred back to the Order the Court made. Even though it took Mike almost 3 years to obtain regular contact, he says it was worth it.
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Divorce Lawyers - Make sure your Attorney or Advocate is on your side Divorce Lawyer - Divorces need not be difficult. With a large number of marriages ending up in divorce; surely the process should be simple. When a marriage has broken down irretrievably, life needs to go on. It is senseless to make up for your unsuccessful marriage, by trying to have a successful divorce. If there are children involved, there is even more reason not to fight. And if there are no children involved, the only outstanding issues would be property. But if you were married out of Community of Property, there is no need to fight at all. This is where a good divorce lawyer comes in. Family Law Questions and Answers Should you not find what you are looking for, feel free to post your questions on our blog, by clicking on the following links: Divorces – Questions and Answers Child Custody – Questions and Answers Child Maintenance – Question and Answers Domestic Violence – Questions and Answers You are welcome to call us on 021 424 3487 / For other legal and business services, feel free to visit: Business SA or Private Legal. This article does ...Read More
Frequently Asked Questions on Child Custody - South Africa We proud ourselves on our knowledge of family law, and related matters in relation to South African Law. This includes issues and questions surrounding child custody, divorce and child maintenance. Feel free to browse through this question and answers sections below. Should you not find the answer to a child custody question you are looking for, feel free to post your child custody question at the bottom of this post. What does it mean when you have primary residential custody? It means that the child primarily resides with you. For example, the child will only visit the other parent every second weekend. What is a joint residence order? The child resides with both parents. Usually on an equal basis. What is joint custody of a child? This is the situation where both parents care for the child. How can you get custody of your child? If you want custody of your child, you would have to approach a court for that. You can either approach the Children's Court of the High Court. The court would then decide if it is in the child's best interests. How do I file for joint ...Read More
Frequently Asked Questions on Child Custody - Cape Town We hold a wealth of knowledge on family legal matters, in relation to South African law. This includes issues and questions surrounding child custody, divorce and child maintenance. Feel free to browse through the question and answers below. Should you not find the answer to a child custody question you are looking for, feel free to post your divorce question here. For more questions on child custody, visit this page. Can you change the baby's last name without the father's consent? No, you require his consent. If he does not want to give consent, then you may approach a court of law. This answer is based on the presumption that the father has parental responsibilities and rights over the child. Do I have parental rights if I am not on the birth certificate? Yes, it is possible that you have. How do you change your last name on your birth certificate? You need to apply to the Department of Home Affairs. How do I apply for child maintenance in South Africa? You should approach the maintenance court. Can you change your child's surname? Yes, you can. Both parents should consent. How ...Read More
Parents with Psychiatric disorders No parent is perfect. And no one can help it if they suffer from some psychological disorder. However, when it comes to parenting, mental health does play a role regarding the issue of child custody. In other words, a parent with a psychological disorder would find it hard to be a child's primary care giver, if the child would best be cared for by the other parent. This is assuming that the other parent in this case is capable of caring for the child. This article is connected to the topic Child Custody and Visitation Court Applications. It may be useful to read up on it before proceeding to read further. Otherwise, read on to find out more about parental child abuse and the legal aspects surrounding it. When should you consult with a lawyer? Seeing that you are dealing with parental rights and responsibilities, it is best to first try to resolve issues with the other parent. If that does not work, then try mediation. Should that still not work, see a lawyer who would advise you on what would be best for you and your child. If need be, a Court application would have ...Read More
Parental Child Abuse in Child Custody Matters This article is connected to the topic Child Custody and Visitation Court Applications. It may be useful to read up on it before proceeding to read further. Otherwise, read on to find out more about parental child abuse and the legal aspects surrounding it. Parental Child Abuse is a common occurrence in our society. This article does not deal with the merits or demerits of parental child abuse. However, it gives light on this aspect in a child custody case. What are the common forms of child abuse? Child abuse can take many forms. This includes physical, emotional, sexual or psychological abuse. Each case may be different. However, the common theme, in a child custody situation would be that the child is being detrimentally affected by the parent's conduct. Therefore, should a parent beat the child, neglect the child, or cause harm to the child, it would be seen as abuse. What happens in cases of child abuse? Of course, in extreme cases of abuse, such parent would be refused contact completely. This is especially in the case where the child would be traumatized should he or she have contact with the parent ...Read More