Sally and Nico was in a relationship for approximately 2 years. During this time Sally fell pregnant. Before Sally had a beautiful baby girl, Paige, the relationship between her and Nico crumbled, and Nico moved out before Paige was born. When Paige was born, Nico wanted to form a part of her life, but Sally said since Nico was not living with her and Paige, that they were never married and that he was not there when Paige was born, he has no rights when it comes to Paige. Nico does not understand as he has been paying maintenance for Paige and has been actively trying to form part of Paige’s life.
The Children’s Act 38 of 2006 (“the Act”), more specifically Section 21 thereof deals with parental responsibilities and rights of unmarried fathers.
Section 20 of the Act sets out the parental responsibilities and rights of a married father, but what if the parents of a minor child were not married? What rights would the father then have in respect of a minor child? This is exactly the situation that Nico was faced with.
As indicated above, Section 21 sets out what rights an unmarried father will have in respect of a minor child. In order to understand what rights any parent will have in respect of a minor child, parental responsibilities and rights firstly needs to be defined.
Parental responsibilities and rights therefore mean:
- To care for a minor child;
- To maintain contact with the minor child;
- To act as guardian of the minor child; and
- To contribute to the maintenance of the minor child.
Therefore, if Nico wants to obtain parental responsibilities and rights, the following criteria must be met:
- He had to be living with Sally in a permanent life-partnership; or
- Regardless of whether he lived with Sally:
- Consents to be identified as the father of Paige or apply to the court to have such rights conferred upon him.
- Contributes, or has attempted in good faith to contribute to Paige’s upbringing;
- Contributes, or has attempted in good faith to contribute to the maintenance of Paige.
Therefore, Nico may be regarded as having full parental responsibilities and rights as he:
- Identifies as the parent of Paige;
- Been actively trying to form part of her life; and
- He has been contributing to the maintenance of Paige.
Since Sally is disputing his rights in respect of Paige, the Act makes the necessary provisions that Nico can refer the matter either to the Offices of the Family Advocate, social worker or any other professional qualified in order to assist the parties.
Alternatively, should Sally agree they can sign a parental responsibilities and rights agreement as indicated in Section 22 of the Act. This will set out exactly what rights each party has in respect of Paige.
In closing, mothers and fathers need to understand that the law makes the necessary provisions for when an unmarried father is afforded parental responsibilities and rights and that as a mother, Sally cannot withhold contact when Nico clearly wants to form part of Paige’s life.
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