Do divorced and unmarried fathers have any rights?
In the past, when parents got divorced, the law would grant the mother of the child “custody” of the children and the father would have limited access rights depending on the circumstances. The mother would be entitled to make all the big decisions regarding the children, such as where they go to school or what religion they would practice, etc, to the exclusion of the unmarried or divorced father.
This, however, is no longer the case with the enactment of our Constitution and the Children’s Act, which changed the previous laws. The term “custody” has also been replaced with primary care, residence and contact.
In terms of our current law, both mother and father now have full parental responsibilities and rights, even after divorce or if they are no longer dating or cohabitating, or unmarried.
The mother of the child has full parental rights and responsibilities in respect of the child, whether she’s married or unmarried.
The father of a child now also has full parental rights and responsibilities in respect of the child if he’s married to the child’s mother, or if he was married to the child’s mother at the time of the child’s conception, birth, or any time between the child’s conception and birth.
An unmarried father automatically acquires full parental responsibilities in respect of the child if at the time of the child’s birth, he is living with the mother in a permanent life partnership, or if he, regardless of whether he has lived or is living with the mother:
- 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;
- contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
- contributes or has contributed towards expenses in connection with the maintenance of the child for a reasonable period.
Simply put, when a child’s mother and father are not married, the father still automatically obtains parental rights and responsibilities if he complies with the requirements set above.
All major decisions relating to the minor child need to be taken by both parents, bearing in mind the views of the child as well. This includes the decision to travel and/or immigrate the child overseas. Both parents must consent to this, otherwise, it amounts to a criminal offense.
If the father and mother get divorced, the mother is not automatically entitled to primary care and residence of the child (formerly known as custody). The father may be awarded primary care and residence if it is in the best interest of the child. What is in the best interest of the child is of paramount importance and primary care, contact, and access rights all revolve around this law. Simply put, if the court feels that the best interest of the child is to primarily live with the father, then such an order can be made.
A common misunderstanding amongst divorced/unmarried parents who have primary care and residence of the child is that the other parent will not be allowed to see the child unless he/she pays maintenance towards the child. This view is wrong and nonpayment of maintenance does not affect the rights of the child to have access and contact with the parent with whom he/she does not live.
Another common misunderstanding is that an unmarried parent can give away or abandon his/her parental responsibility and rights in respect of the child. This perception is wrong and these rights and obligations cannot be discarded unless a formal adoption has taken place through a social worker and the courts.
If a child is born to unmarried parents, then in terms of the law, the child will take the mother’s surname and not that of the father unless the parents agree otherwise.
Furthermore, the law also applies to children in same-sex marriages as well.
In summary, an unmarried/divorced father who does not have primary care and residence of the child has been empowered and has many more rights in our current law than he did before. A father may also fight for primary care and residence of the children if it is in their best interests.
A father should therefore not feel helpless should the mother of the child attempt to deny him access and visitation to his children or threaten to take the children out of his life, as this would be unlawful and the father has the right to take this matter to the office if the family Advocate and/or the Children’s Court.
In today’s time, divorce, where children are involved, is more common, and more people are having children out of wedlock and not marrying at all.
It is therefore highly recommended that unmarried/divorced fathers set up a registered parenting plan and agreement with the mother of the child to avoid disputes regarding access and visitation. If no agreement or court order exists, then the father cannot enforce his rights given to him by our law.