22 June 2019
Unmarried fathers and the acquisition of parental responsibilities and rights
In the past, a biological unmarried father did not automatically acquire rights in respect of his child born out of wedlock. Although our law has come a long way since then, it is important to remember that fathers are still not treated the same as mothers in the automatic allocation of parental responsibilities and rights. biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights because she has given birth to the child.
The Children’s Act 38 of 2005 ( “the Children’s Act”) does make things slightly easier for the biological father nowadays but it still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers.
Another important note to remember is that the unmarried father’s position still differs from that of the married or divorced biological father. If a father was married to the mother of a child he will automatically acquire full parental rights and responsibilities in respect of his child. The mere fact that the father was (is) married to the mother establishes a link between the parents whereas the link between the mother and an unmarried father is absent and therefore somewhat more complicated.
According to section 21 of the Children’s Act, an unmarried biological father will have automatic parental rights and responsibilities only if:
- He was living with the mother in a life partnership (as though married) at the time of the child’s birth.
- 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; and
- He contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and
- He has paid or attempted to pay maintenance for a reasonable period of time.
- By fulfilling all of the above three requirements, the unmarried father automatically acquires full parental responsibilities and rights.
If both parents are in agreement that the biological father does meet the criteria to automatically acquire parental rights and responsibilities, the parents will be the co-holders of parental rights and responsibilities in respect of their children. At this point, the most prudent thing to do would be for the parents to enter into a parenting plan which will set will exercise these responsibilities and rights. The parenting plan can either be drafted by an attorney or with the assistance of the family advocate.
If the father does not meet the above criteria and the mother is not prepared to grant him parental rights and responsibilities by agreement, the matter must be referred to mediation to a family advocate, social worker, social service professional or other suitably qualified person, before the father approaches the court for relief.
During mediation the parties will attempt to settle the disputes between them in an effort to reach a consensual settlement that will accommodate both party’s needs. If the mediation is successful the independent expert will draft a parenting plan that incorporates both parties negotiated terms. If the parties are unable to reach settlement 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 further investigation.
The ultimate goal is for the parents to work together towards a parenting plan that works for both parties as well as the children. It is therefore of the utmost importance that the parents remain level headed and fair whenever they are involved in disputes regarding parental rights and responsibilities.