PARENTAL responsibility includes the responsibility 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. The Children’s Act further sets out that a person may have full or specific parental responsibilities and rights. Full parental responsibilities and rights means that a person may be entitled to all the rights set out in the Act. Specific parental responsibilities and rights means that a person may only have a specific right in terms of the Act; for example, the right to act only as guardian of the child.
Unmarried biological fathers:
Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, section 21, an unmarried biological father will have automatic parental rights and responsibilities only if:
At the time of the child’s birth, he was living in a life partnership with the mother, and they were living as husband and wife but chose not to get married.
Regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law.
He contributes, or has attempted to contribute in good faith, to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.
Parental responsibilities and rights of unmarried:
Section 21 terms of the Children’s Act 38 of 2005 states that:
The biological father of the child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full responsibilities and rights in respect of the child.
If at the time of the child’s birth he is living with the mother in a permanent life-partnership; or if he – regardless of whether he has lived or is living with the mother – consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law:
contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
This section does not affect the duty of a father to contribute towards the maintenance of the child.
Subsection (a) if there is a dispute between the biological father referred to in subsection (1) and the biological mother of the child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social services professional or other suitably qualified person.
Any party to the mediation may have the outcome of the mediation reviewed by a court.
This section applies regardless of whether the child was born before or after the commencement of this Act.
Disputes:
If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person.
Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.
Reasons for mediation when the parties cannot agree on whether or not the father meets the criteria:
- The parties agree that the father does not meet the criteria and the mother is not prepared to grant him any parental responsibilities and rights;
- The parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental responsibilities and rights by means of a parental responsibilities and rights agreement;
- The parties agree that the father has parental responsibilities and rights and agree on a parenting plan; or
- The parties agree that the father has parental responsibilities and rights but cannot agree on a parenting plan.
- If the parties are unable to reach settlement on whether the father satisfies the criteria or not, the family advocate will issue Form 6 – a statement of the outcome of the mediation.
- The parties may then approach the Court for adjudication of the issues. If the matter is brought to the Court, the court will usually refer the matter to the family advocate for investigation.
- If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.
- If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate will then assist them.
- If the parties are unable to reach settlement on whether the father satisfies the criteria or not, the family advocate will issue a statement of the outcome of the mediation. The parties may then approach the Court for adjudication of the issues. If the matter is brought to the Court, the court will usually refer the matter to the family advocate for investigation.
- If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.
- If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate will then assist them.
The child’s best interest is a constitutional right of every child with reference to section 28 (2) of the Constitution and section 7 of the Children’s Act. In all matters concerning a child, the best interests of the child are of paramount importance in all matters concerning the care, protection and well-being of a child, and is the yardstick used by the court and family advocate.
Courtesy: Mpho Mathepe Theron THERON & THERON INC www.divlaw.co.za
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