The rights of unmarried fathers

Prior to the commencement of the Children’s Act (38 of 2005), unmarried fathers did not have automatic rights and responsibilities pertaining to children who were “born out of wedlock”. The situation where children are born of a relationship where the biological parents were not married at the time when the child was conceived often culminate in a legal dispute pertaining to contact with the child. Previously these disputes where known as “custody battles”. Although there is today no shortage of such disputes, the rules have changed significantly since the inception of the Children’s Act.

What rights do unmarried fathers have in terms of the childrens’ act?

Section 21 of the Children’s Act regulates the rights and responsibilities acquired by unmarried fathers. In terms of this section an unmarried father automatically obtains the same rights and responsibilities as a married father if he resided with the biological mother of the child (as if they were married) at the time of the child’s birth if certain requirements are met.

If the biological father did not so reside with the biological mother of the child, he can still automatically obtain the same rights and responsibilities as a married father if certain requirements are met. These requirements are that the father must:

• be identified, or consent to being identified as the child’s father;
• have contributed in good faith (or attempted to contribute) towards the upbringing of the minor child; and
• have contributed in good faith (or attempted to contribute) towards the maintenance of the minor child.

Prior to the inception of the Children’s Act, a natural father of a child born out of wedlock may have applied to have his child formally adopted (Section 17 of the Child Care Act, 74 of 1983). The Natural Fathers of Children Born of out Wedlock Act 86 of 1997 changed the position slightly by permitting courts to grant the natural father access rights to, custody or guardianship of the child on application by the natural father. However, such an application by the natural father would not have been granted:

• Unless the Court is satisfied that it is in the best interests of the child; and
• Until the Court, if an enquiry was instituted by the Family Advocate, has considered the report and recommendation by the Family Advocate.

What if the biological parents disagree whether or not the unmarried father complies with the requirements as se out in the children’s act?

The moment when a dispute arises between the parents with regards to whether or not the unmarried father complies with the requirements set out in the Children’s Act, the dispute must be referred to mediation. Mediation is a process where an independent third party meets with both parents and assists them in resolving their disputes; this is an excellent process to follow when there are children involved due to the fact that this process protects ongoing relationships.

However, when the dispute can’t be solved through mediation, the parties can approach the High Court in order to adjudicate the dispute. The parties can also enter into a parenting plan which sets out the rights and responsibilities of each parent. (click here to further read about mediation or parenting plans)

What do i do when i have a dispute in terms of section 21 of the children’s act?

If you are involved in a dispute as either the biological mother or father, you can contact our office for legal assistance in the form of either legal representation or to assist with the mediation process. We will assist you by making this frustrating process as stress-free as possible.