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I would love to have contact with my child on Father’s Day. Her mother is refusing me contact. What does the law say when it comes to the rights of a father?
Every year, the World celebrates Father’s Day. In 2019, it was celebrated on 16 June, coinciding with Youth Day in South Africa. It is a very special day not only for fathers but for the children concerned. When we refer to children, we are not only referring to kids or toddlers. Even grown-up children celebrate Father’s Day with their respective fathers. In some families, Father’s Day is being celebrated by three generations of offspring. This article, however, relates to Father’s Day in the context of minor children spending time with their fathers on that special day.The Father
We will not go into the technical legality of what makes you a father. A child who has been adopted is for all intents and purposes the child of the adoptive parent. Even if the child was not adopted, or you are not the biological father of the child, if the child refers to you as a father, then the celebration of Father’s Day would apply to you. Here a specific example would be step-parents. Now let’s move on to the issue of what rights does a father have to have contact with his child on Father’s Day. But before we can do that, we need to have a look at the Children’s Act 38 of 2005. Let us start off by looking at what the law says regarding parental responsibilities and rights of fathers. You will note that the law applies differently when it comes to married and unmarried fathers. However, the principles are the same.Unpacking the law
The purpose of this article is to correctly outline the law applicable to the rights of fathers in relation to their children. In this case, we shall make extensive reference to the Children’s Act. A father can, therefore, have a look at the various sections of the Children’s Act, unpacked below and apply it to himself. Let us start off with a concept of parental responsibilities and rights.Parental responsibilities and rights of married fathers
Section 20 of the Children’s Act deals with the parental responsibilities and rights of married fathers. It states: The biological father of a child has full parental responsibilities and rights in respect of the child— (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at— (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. This section is straight forward. If you were married to the child’s mother, you automatically have full parental responsibilities and rights in respect of the child. In short, you do not have to be married to the mother at conception. Parental responsibilities and rights of unmarried fathers Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. It states: (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child— (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or (b) if he, regardless of whether he has lived or is living with the mother— (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. (2) This section does not affect the duty of a father to contribute towards the maintenance of the child. (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. (b) Any party to the mediation may have the outcome of the mediation reviewed by a court. (4) This section applies regardless of whether the child was born before or after the commencement of this Act. The application of this section can be a bit technical. However, it seems that if a father was involved in a child’s life, he acquires parental responsibilities and rights. Now let us move on to what is meant by the term “parental responsibilities and rights”. Parental responsibilities and rights Section 18 of the Children’s Act deals with parental responsibilities and rights. It states the following: (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right— (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must— (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including— (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c). This section is extensive. However, it is clear that if you have parental responsibilities and rights in relation to a child, you would form part of the child’s life. Moreover, you would be part and parcel of important decision-making in the child’s life. With regard to Father’s Day, a father having parental responsibilities and rights in relation to a child should have contact on that special day. As it is clear from the above, the law looks at what is best for the child. And it would be best for the child to celebrate Father’s Day with his or her father. Now let’s move on to the best interests of the child principle.Best interests of the child
Section 9 of the Children’s Act states the following: Best interests of child paramount.—In all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied. There you have it. The law does not look at the interest of the parents or other third parties. The law looks at what is best for the child. Now let us move on to the best interests of the child standard.Best interests of the child standard
With regard to the best interests of the child standard, section 7 of the Children’s Act states the following: (1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely— (a) the nature of the personal relationship between— (i) the child and the parents, or any specific parent; and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards— (i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from— (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child— (i) to remain in the care of his or her parent, family and extended family; and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s— (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by— (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. (2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child. The Children’s Act refers to a variety of factors above. At the end of the day, what is best for the child is looked at.Definition of “Care”
Before we end this article, we feel that it is important to deal with the aspect of care in the Children’s Act. What is meant by care? The Children’s Act defines “care” as follows: “care”, in relation to a child, includes, where appropriate— (a) within available means, providing the child with— (i) a suitable place to live; (ii) living conditions that are conducive to the child’s health, well-being and development; and (iii) the necessary financial support; (b) safeguarding and promoting the well-being of the child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act; (e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development; (f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development; (g) guiding the behaviour of the child in a humane manner; (h) maintaining a sound relationship with the child; (i) accommodating any special needs that the child may have; and (j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;Conclusion on the rights of a father on Father’s Day
From the above, it is clear that the law does not discriminate between fathers that were married to the mother and those who were not. What the law is only concerned with is what is best for the child. Various factors are looked at and those are outlined above. At the end of the day if it is in the child’s best interests to have contact with the father on Father’s Day; the law would enforce it.
Posted on by Telelaw
Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Alice.
Child Maintenance is the right of the child, and not that of the parent. It is also not a privilege granted to parents who must pay it. It is their duty to pay child maintenance and support their children. Once the child is self-supporting (being able to care for him or herself), the obligation falls away. This can happen when the child is 18, 20, or even 30. It all depends on the circumstances of the case.
Claiming child maintenance for your child in Alice
Whether you claim child maintenance in Alice, or any other city in South Africa, the procedures would be the same. There are however two (2) courts that can deal with child maintenance matters. That is a divorce court, in a divorce matter, and a Child Maintenance Court. For this article, we will focus on claiming maintenance in a Maintenance Court matter in Alice.
The maintenance scenario – Alice South Africa
In this article, we will deal with the following fictitious scenario, in a child maintenance matter:
- The Child is seven years old and attends school in Alice
- The child is cared for by the mother who works in Alice
- The mother works and earns a Salary of R 10 000
- The father sees the child every second weekend. He also lives and works in Alice
- The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
- The father earns a reasonable salary and can afford the R 20 000 – 00 per month
- The mother claims R 4 000 – 00 maintenance as the father earns double her salary
What is the first step the mother must take in claiming child maintenance?
The first thing the mother must do is work out exactly what the child costs by item. She breaks down the minor child’s living expenses, starting from rent or accommodation to groceries to school fees etc. Once she has done that, she would need to determine what exactly does the minor child cost per month, seeing that she will be asking the father to contribute towards that. As best as possible, she needs to collect proof of expenses. This can be in the form of receipts.
How does she start the legal process?
The mother now needs to approach the maintenance court in the area where she lives or works to lodge a complaint for child maintenance. If she lives or works in Alice, it would be the maintenance court in Alice. She will complete a Form A wherein she will provide all the expenses for her and the minor child. She would also have to stipulate her income. Once she completed the form and submitted it to the maintenance court, she must then follow the next step.
What do you do while waiting for the maintenance court date?
While you wait to be informed of the court date by the Maintenance Court of Alice, and up until the actual first court date, you need to ensure that you keep a record of all income and expenses for you and the child. This is very important as the court allocates maintenance based on recent income and expenses.
What happens at the first court appearance at the Alice Maintenance Court?
Once you have been notified of the maintenance court date by the Alice Maintenance Court, you need to ensure that you attend it. On that day, both you and the father of the child would appear before a maintenance officer. The maintenance officer would go through both your income and expenses as well as that of the father. If all the relevant information is not before the maintenance court, then the matter may be postponed in order for the parties to submit it.
The maintenance officer will try to settle the matter and have the parents come to an agreement regarding the amount of child maintenance to be paid. If they cannot come to an agreement regarding the child maintenance to be paid, the matter would have to proceed to a formal hearing or trial before a Magistrate.
How does the Maintenance Court hearing or trial work in Alice?
Essentially, the maintenance court is called upon to make a fair ruling regarding what is a fair amount of child support that needs to be paid. For that to happen, the parents would have to give evidence in that regard. The mother would present to the court what the child costs, what she contributes and what she requires the other parent to pay. The Father would have a right to question the mother and to present evidence as to why he cannot afford the amount requested or why he feels it is an unfair amount. The mother can they also question him.
At the end of the day, the Alice Maintenance Court would be able to properly determine what is a fair and adequate amount of child maintenance to pay after being presented will all relevant information. The Alice Maintenance Court should play an active role in determining what is a fair amount of child maintenance the father should pay.
The above child maintenance application principles should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, Alice, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester
Posted on by Telelaw