Legal expert, Sikelela Masumpa, who is an associate at Adams and Adams says that the most common challenge that unmarried fathers face is being denied contact with their children due to customary traditions and/or being subjected to obstacles by the mother and her family.
“The Children’s Act (“the Act”) may go a long way in resolving archaic and gendered power relations within marital and parental relationships. However, the vesting of parental rights and responsibilities differs between married fathers and unmarried fathers,” said Masumpa.
Before the commencement of the Children’s Act, the biological father of a child born outside of marriage did not acquire any automatic rights and responsibilities, however, a father may now obtain full rights and responsibilities, including joint decision-making regarding how the child is to be raised, cared for and treated, provided that parental rights are not restricted, suspended or terminated.
Section 21 of the Act provides certain conditions that must be fulfilled by a biological father who wishes to obtain parental rights and responsibilities regarding his minor child born out of wedlock, namely:
- At the time of the child’s birth, he is or was living with the mother in a permanent life partnership or, regardless of whether he has lived or is living with the mother, he consents to be identified or successfully applies to be identified as the child’s father or pays damages in terms of customary law.
- The father contributes or has attempted in good faith to contribute towards the child’s upbringing and expenses in connection with the maintenance of the child for a reasonable period.
A father of a child may also obtain full parental rights by concluding a parental responsibilities and rights agreement with the mother of a child in terms of section 22 of the Act.
Unmarried fathers are implored to utilise the Act and ensure that they acquire parental rights and responsibilities in respect of their children, regardless of their relationship with the mother.
In most circumstances, it is always in the best interest of a minor child to have a bond with their father.