Parental Rights and Responsibilities

The Children’s Act sets out details regarding parental rights and responsibilities. The rights that a person may have in respect of a child include the right to care for the child, the right to have contact with the child, guardianship and the contribution to the maintenance of the child.

In terms of Sections 19 and 20 of the Children’s Act, both parents have equal rights and responsibilities in respect of their child. When separating, both parents have to decide with which parent the child is to reside and what the contact rights of the other parent will be.

However, a situation may arise where parents of a child were not married and the question of paternity arises, which results in parental rights and responsibilities becoming a dispute.

Rights and Responsibilities of Mothers:

The biological mother of a child will by default be vested with full parental rights and responsibilities in respect of her child, whether married or unmarried.

Rights and Responsibilities of Married 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.

Rights and Responsibilities of un-married Fathers:

The Children’s Act does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Children’s Act, an unmarried biological father will have automatic parental rights and responsibilities in respect of their child only 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;
2. regardless of 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.

The mother of a child or other person who has parental rights and responsibilities in respect of a child may enter into an agreement (parenting plan) providing for the acquisition of parental rights and responsibilities in respect of the child with the biological father of a child who does not have parental rights and responsibilities in respect of the child, or with any other person having an interest in the care, well-being and development of the child.

This agreement must be drafted in the prescribed format and must contain prescribed particulars. The agreement will only take effect once it has been registered with the office of the Family Advocate, or if it is made an order of the High Court, a Divorce Court in divorce proceedings, or the Children’s Court on application by the parties to the agreement.