The law and fathers and their rights

Father’s Day on 19 June is the perfect opportunity to reflect on the rights and responsibilities of natural fathers under South African law. A dad is a hero to a child and should be given an opportunity to play a part in his or her life.

But South African law is primarily concerned with the natural father’s financial responsibilities to his offspring rather than with his right to spend time with his kids and take an active role in their upbringing.

Traditionally, fathers (and especially unmarried fathers) were granted few parental rights under South African law, although the picture has changed somewhat with the introduction of the Children’s Act 38 of 2005.

As a natural father, you now have the rights to be informed of the pregnancy, to have the opportunity to acknowledge paternity and to be included in the registration of the child’s birth. You may accept or oppose the adoption of an unplanned child and have your stance put on the record.

What’s more, you have the right to adopt your child should the birth mother decide to give the child up for adoption, provided you are found to be suitable as an adoptive parent.

By acknowledging paternity you accept some financial responsibility for the child, should you and the mother choose not to raise the child together. The mother can seek a court order for maintenance payments if you and her don’t come to an agreement about how much you should contribute financially to the child’s upbringing.

But the other side is that an unmarried father can acquire parental rights and responsibilities automatically (without needing to go to court) if he complies with conditions set out in section 21 of the Children’s Act.

When Section 22 of the Children’s Act is fully operational, an unmarried father will be able to  acquire such responsibilities and rights through an agreement with the mother.

The law also makes provision for unmarried fathers to seek a Supreme Court order to deprive the mother of custody should the mother not be providing the proper care to the child. If the court agrees with the father’s claims, it may award custody or guardianship to him or to a third party who, in its opinion, is able to care for the child.

Fathers are as responsible to their children as mothers are and should be allowed to play a significant role in the upbringing of their sons and daughters.  Should you as a father feel that you are not being given fair access to your children, you should seek legal counsel to determine what your rights and responsibilities should be under the law.

By Yusuf Boda, legal manager at Legal & Tax Services