Married and Unmarried Child Custody, Access and Contact

In the case of a divorce, both parents have to decide who will get custody of the children and what the non-custodial parent’s access and contact with the child will be.  There are various instances where biological parents, who have never been married, decide to part ways.  Let’s take a look at child custody, contact and access pertaining to both unmarried biological parents and married biological parents.

According to Sections 19 and 20 of the Children’s Act, both parents have equal rights and responsibilities in respect of their children.  The Act details their right to have contact with the child, guardianship of the child as well as each parents duty to maintain the child. 

The biological mother of a child will by default acquire full parental rights and responsibilities, whether she was married to the child’s father or not.   

It is important to note that the Children’s Act does not provide unmarried biological fathers with automatic, inherent parental rights in the same way it does for married fathers and mothers.  

Child Access & Contact for Unmarried Biological Fathers

According to the Children’s Act, an unmarried biological father will acquire full parental rights and responsibilities in respect of their child if:

  1. At the time of the child’s birth, he was living in a life partnership with the child’s mother. For example, he and the child’s mother were living as husband and wife (i.e. a de facto husband and wife relationship) and elected not to get married; or
  2. Regardless whether or not he was living with the child’s mother, he consents to be identified as the child’s father, 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
  3. He contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or has attempted to pay maintenance.  

Child Access & Contact for Married Biological Fathers

The biological father of a child has full parental rights and responsibilities in respect of the child if, either:

  1. He is married to the child’s mother; or
  2. He was married to the child’s mother at the time of the child’s conception, birth or anytime between the child’s conception and birth.

How to Handle Disputes

Mediation by a qualified Family Law Attorney is helpful when a dispute arises between the biological parents over the question of whether the father has parental rights and responsibilities in respect of their children. 

Mediation is useful in various instances:

  • Both parties do not agree on whether or not the father gets full rights and responsibilities in respect of their children;
  • Both parties agree that the father does not meet the criteria to get full rights and responsibilities in respect of their children and the mother is not prepared to grant him any parental rights and responsibilities;
  • Both parties agree that the father does not meet the criteria but the mother is prepared to grant him specific parental rights and responsibilities by means of a parental rights and responsibilities agreement (parenting plan) drafted by a Family Law Attorney;
  • Both parties agree that the father has parental rights and responsibilities and agree on a parenting plan; or 
  • Both parties agree that the father has parental responsibilities and rights but cannot agree on a parenting plan.
 

Possible Outcomes of Mediation:

If both parties agree that the father does not satisfy the criteria, they may still agree to enter into a parental rights and responsibilities agreement (parenting plan). This involves either the mother granting certain parental rights and responsibilities to the father or, the father can apply to be granted certain parental rights and responsibilities if not granted by the biological mother.

If the parties reach an agreement that the father does satisfy the criteria, they can enter into a parenting plan, which a Family Law Attorney can assist them with. 

Conclusion

An experienced Family Law Attorney is able to assist with determining whether or not a father has automatic parental rights and responsibilities, and if need be, draft a parenting plan setting out the rights and responsibilities of each parent.

Van Heerdens Attorneys has the expertise and experience required to mediate disputes regarding the rights and responsibilities of unmarried and married fathers.   

Do you have a matter which you would like to discuss?

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