Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.
The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.
- If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
- If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
- If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.
An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:
- at the time of the child’s birth, is living with the mother in a permanent life partnership, or
- consents to be identified as the child’s father, or
- successfully applies to be identified as the child’s father, or
- pays damages in terms of Customary Law, or
- contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.
What factors will the court take into account when considering an application for parental rights and responsibilities?
- The best interests of the child.
- The relationship between the unmarried father and the child.
- The relationship between any other person and the child, such as the mother.
- The degree of commitment the unmarried father has shown towards the child.
- Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
- Any other factor the court considers to be relevant, such as:
- whether the unmarried father has a history of violence towards children;
- the effect of separating the child from his/her mother; or
- the child’s attitude towards the relief sought in the application.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)