At the outset, it is important to grasp that parental rights and responsibilities primarily refer to the care, contact and maintenance of a minor child.
Furthermore, an unmarried father does not have automatic parental rights and responsibilities. The Act that governs instances where an unmarried father wishes to acquire parental rights and responsibilities is the Children’s Act, No. 38 of 2005 which came into operation on 1 April 2010.
In terms of this Act, and more specifically Section 21, an unmarried father may acquire parental responsibilities and rights to a child that has been born out of wedlock. However, certain factors will have to be considered prior to him acquiring such rights.
These include: (a) At the time of the child’s birth, whether the father is living with the mother in a permanent lifepartnership; (b) The father, regardless of whether he has lived or is living with the mother –
• consents or applies to be identified as the minor child’s father or pays damages in terms of customary law;
• contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
• contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
Should a dispute arise between the unmarried father and the mother of the child in respect of the unmarried father being able to fulfil any of the conditions as set out above and/or exercising his parental rights and responsibilities, the matter must be referred to the Family Advocate, a social worker, social services professional, or any other suitably qualified person.
It should be noted that should the father be dissatisfied with the outcome reached by any one of the above-mentioned individuals, he may approach the nearest High Court in order to acquire such parental rights and responsibilities.
When determining whether the unmarried father should be afforded parental rights and responsibilities, there are various factors that will be taken into consideration, such as:
(a) The best interests of the child;
(b) The relationship between the unmarried father and the child;
(c) The relationship between any other person and the child, such as the mother;
(d) The degree of commitment the unmarried father has shown towards the child; (e) Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
(e) Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
