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:
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:
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.