Children born out of wedlock now have the same rights as children born to married couples

Posted on 11 February 2025 by Telelaw

Parents with Mental illnesses in child custody and care matters in South Africa
Biological parents are the ones who have parental responsibilities and rights over their children. Not grandparents, aunts, uncles and so on. Parental responsibilities and rights refer to caring, maintaining and acting as guardian for the child, to mention a few. Mothers automatically have parental responsibilities and rights of care, contact and guardianship, and fathers may either have it or acquire it. This depends on the facts of the case. The obligation to maintain your child however always applies.

Various factors are looked at when deciding what is best for a child

Having said the above, how parents exercise their parental responsibilities and rights would differ from case to case, especially if the parents are not living together. In such a case, various factors and circumstances will be looked at in determining what is best for the child. As would be seen later, in the case of a dispute in relation to how separated and divorced parents should exercise care and contact, expert advice needs to be considered. What this article deals with is how to resolve the issue of parental responsibilities and rights of care and contact when it comes to a parent having a mental illness or disease.

The child’s best interests in all matters concerning a child

We all want what is best for our children. That includes for them being cared for in the best possible way, either by you as a parent, or the other parent if that is best. Having parents who are mentally sound as caregivers are, therefore, an important aspect when it comes to raising a child. Logical and rational caring would take place under the circumstances. Parents would, therefore, communicate in a sensible way with the goal of caring for the child in the best possible way.

Mental illness in a parenting situation

If a couple lives together, and one of them has a mental illness, the other parent would be in a good position to care for the children and the other ill parent. However, problems arise when the parents are separated or no longer living together. The question is what happens to the child if one of the parents are mentally ill or have a mental disease or disorder? It must be stated that not all mental illnesses and diseases warrant consideration when it comes to the issue of care and contact in relation to minor children. If the mental illness or disease is adequately treated through medication and therapy, then it may not be a factor when it comes to parent’s parental responsibilities and rights of care and contact.

Types of mental illnesses and disorders

There are various types of mental illness and diseases. Some of the main groups of mental disorders are:

mood disorders (such as depression or bipolar disorder)
anxiety disorders
personality disorders
psychotic disorders (such as schizophrenia)
eating disorders
trauma-related disorders (such as post-traumatic stress disorder)
substance abuse disorders

Examples of signs and symptoms include:

Feeling sad or down
Confused thinking or reduced ability to concentrate
Excessive fears or worries, or extreme feelings of guilt
Extreme mood changes of highs and lows
Withdrawal from friends and activities
Significant tiredness, low energy or problems sleeping
Detachment from reality (delusions), paranoia or hallucinations
Inability to cope with daily problems or stress
Trouble understanding and relating to situations and to people
Problems with alcohol or drug use
Major changes in eating habits
Sex drive changes
Excessive anger, hostility or violence
Suicidal thinking

If any of the above-mentioned mental disorders and symptoms thereof would detrimentally affect a parent’s capability to care for a child; then it needs to be considered in a child custody matter. It could, therefore, happen that one parent who had custody over a child, loses it, due to developing or acquiring a mental illness.

How mental illness and diseases may manifest itself in child care and parenting situation

It may be that people with mental illnesses live normal lives as single individuals without any children. They would go to work, partake in sport, and socialize as any other person would. However, when children come into the picture, their mental illness could cause the following to occur:

The minor children are not cared for due to one parent having an obsessive-compulsive disorder of always washing his or her hands. They are therefore not fed on time, bathed nor care for properly;
A parent is violent and abusive towards the children. He may get angry very fast and act violently;
The parent is on strong medication which causes the parent to want to sleep all the time. The minor children are therefore not cared for at all and left to their own devices;
The parent lost all form of rationality and makes illogical decisions when it comes to the minor children, placing them in danger. For example, the parent may decide to take the minor children to walk with him or her to the shop late at night when it is dangerous to do so; and
The parent may suffer from hallucinations and live in a fantasy world. He or she may be guided on how to parent the minor children from “spirits” who visits and communicates with her.

Diagnoses of mental illness in a parent

It often happens that before a couple has a child, there are no apparent signs of mental illness. It may even happen that the parents of one of the parties knows of some underlying mental illness, but does not want to disclose it to the new person in their child’s life. In other cases, it is well known to all that there is a diagnosis of mental illness which is under control through medication, therapy and so on. And then there is the case where the person with the apparent mental illness does not want to seek any help or is in denial.

What happens after the child is born where one parent has a mental illness?

We are not medical doctors, psychologists, nor psychiatrists. However, in our experience, we noticed, in many of the cases we dealt with, that once a couple has a child, the mother’s medical illness surfaces, or becomes worse. The same may apply to the father. This observation could be because those types of matters make it to our office and should therefore not be a general assumption. However, be that as it may, if one parent has a medical illness that could affect her parenting skills, that needs to be looked at. This is so, even though it is not the parent’s fault that he or she has a mental illness. Now the best-case scenario would be for both parents to remain together if one has a mental disorder when there is a child involved. In that way, the child would be raised with both parents in his or her life and they can work as a team. Depending on the symptoms of the medical disorder, the family can live a balanced and fruitful life.

What happens to the child if the parents separate or divorces?

This is where the issues arise. Should the parents’ divorce or separate, the parties would have to decide who is best suited to care for the minor child or children. If the parent with the mental disorder was the primary caregiver of the minor child since birth, it would be hard to consider a change in primary caregiving. The parent with the mental illness may feel that it would be best that he or she care for the child, despite his or her mental condition. This is where things become very complicated and challenging. On the one hand, you have a parent who always cared for the child, but now has a mental illness, and want to retain primary care. On the other hand, you have a parent who was never the primary caregiver but now wants primary care due to the other parent’s mental condition.

Factors to be considered by the court and experts

Various factors come into play. For example, the age of the children, in whose home they will be living in, and also the mental condition itself. For example, if the child is 16 years old, and the mother has a serious mental illness, for the past 10 years, it would make little sense to change the primary residence of the minor child on that factor alone. By now the child would have learned to care for himself with the assistance the mother provided under the circumstances. On the other hand, if the child is 6 years old, and the mother cannot even take care of herself, then under those circumstances, it may be a good idea if the father primarily cares for the child after separation.

How does one resolve the issue of primary care if one of the parents have a mental condition?

Seeing that the condition is a medical one, mental health care experts need to get on board. An assessment would have to be made as to whether or not the child can be cared for by the relevant parent notwithstanding his or her mental condition. If there is no documentary proof, and such is required for court; the problem that one may encounter is that of doctor-patient confidentiality. This may not always be the case. But especially so if the parents were not married or living together. Usually, medical aid statements would give a timeline of the condition and its treatment. This would apply if the parent with the condition is on the other parent’s medical aid. If the medical practitioner is willing to give a report on the patient’s medical condition, and the inability to care for the minor child; things should be easier to resolve. However, if no such report or diagnosis is forthcoming, then things would be a bit more challenging. Either way, even if you have the report confirming the medical condition, and the issue is not resolved, then the court needs to be approached.

Approaching the court in a child custody matter where one parent has a mental illness

Not all cases of mental illness warrant a child being removed from the care of the primary caregiver. Each case is different and it depends on the facts of each one. However, should the mother had primary care, and she refuses to have the minor child reside with the father due to her mental condition, the court, unfortunately, have to be approached. If the father, in this case, has proof that the mother is mentally unsound and unable to care for the minor child, then the court would have to consider such evidence. This could be a report from the treating doctor or some medical records. The court may however not be in a position to decide how contact and care arrangements should be exercised. For this, the court may want the Office of the Family Advocate or a private social worker or psychologist to conduct an investigation and provide a report in the matter. Once the court has the expert report and heard from both parents concerned, would the court be in a favourable position to rule on what is best for the minor child? It does not mean that because the mother has a mental illness that she should not remain the primary caregiver. As outlined above, various factors would need to be considered. Especially the impact the mental illness would have on her caring ability towards the minor child.

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Posted on 11 February 2025 by Telelaw

Children born out of wedlock – The issue of whose surname the minor child should have
Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life. The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”. Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?

Issues in relation to a surname of minor children born out of wedlock

This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname. Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he may never form part of the child’s life but wants the child to have his surname. This we refer to as an ego or vanity reason. And the second issue this article deals with is what the law says regarding a change to the surname of a child born out of wedlock. This is also an important issue as, sometimes, the father of a child born out of wedlock is the one who cares for the child and invests most of his life in the child. Situations can arise where it would be expedient for him to have primary care over the child and for the child to have his surname. We will look at this issue in more detail below. Now let us look at the law.

Births and Deaths Registration Act 51 of 1992

When it comes to issues of name, surname, details of the father on the birth certificate and so on, we refer to the Births and Deaths Registration Act 51 of 1992. What this Act says, is that within 7 (seven) days of the birth of the child born out of wedlock, or any child for that matter, notice of his or her birth must be given to the Department of Home Affairs in the prescribed manner. It further says that if the parents are married, then the child would have the father’s surname. However, that is not the case for children born out of wedlock as you will see later. The Births and Deaths Registration Act 51 of 1992 unfortunately still uses the term “illegitimate child”. But let’s have a look at it anyway.

Section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 of the Births and Deaths Registration Act 51 of 1992 is entitled “Notice of birth of illegitimate child”. It states the following: “10. (1) Notice of birth of an illegitimate child shall be given – (a) under the surname of the mother; or (b) at the joint request of the mother and of the person who in the presence of the person to whom the notice of birth was given acknowledges himself in writing to be the father of the child and enters the prescribed particulars regarding himself upon the notice of birth, under the surname of the person who has so acknowledged. (2) Notwithstanding the provisions of subsection (1), the notice of birth may be given under the surname of the mother if the person mentioned in subsection 5 (1 )(b), with the consent of the mother, acknowledges himself in writing to be the father of the child and enters particulars regarding himself upon the notice of birth.”

Explanation of section 10 of the Births and Deaths Registration Act 51 of 1992

Section 10 says that if the child was born out of wedlock, he or she should have the surname of the mother. However, if both the mother and father agree, then the child can have the surname of the father. Now, this is what the law says, and what would probably happen in life should the mother and father be on good terms when the child’s name is registered. However, what can the father do if later he wants the child to have his surname? In that case, we have to look at a different section of the Births and Deaths Registration Act 51 of 1992. And that is section 25 of the Act.

Section 25 of the Births and Deaths Registration Act 51 of 1992

Section 25 of the Births and Deaths Registration Act 51 of 1992 deals with the alteration of the surname of a minor. Unfortunately, in that section, the word “illegitimate minor” is still used. The sections state the following: “25. (1) When- (a) the birth of any illegitimate minor has been registered and the mother of that minor marries any person other than the natural father of the minor; (b) the father of any minor is deceased or his parents’ marriage has been dissolved and his mother remarries or his mother as a widow or divorcee resumes a surname which she bore at any prior time; (c) the birth of any illegitimate minor has been registered under the surname of his natural father; or (d) a minor is in the care of a guardian, his mother or his guardian, as the case may be, may apply to the Director-General for the alteration of his surname to the surname of his mother, or the surname which his mother has resumed, or the surname of his guardian, as the case may be, and the Director-General may alter the registration of birth of that minor accordingly in the prescribed manner: Provided that the man who married the mother of a minor mentioned in paragraph (a) or (b), shall grant written consent for the alteration. (2) Any parent or any guardian of a minor whose birth has been included under a specific surname in the population register, may on the strength of a reason not mentioned in subsection (1), apply to the Director-General for the alteration of the surname of the minor under which his birth was registered, and the Director-General may, on submission of a good and sufficient reason given for the contemplated alteration of the surname, alter the said original surname accordingly in the prescribed manner. (3) For the purposes of this section “guardian” includes any person who has in law or in fact the custody or control of a minor.”

Explanation of Section 25(1) of the Births and Deaths Registration Act 51 of 1992

Section 25 (1) provides for the situation where the minor can have his or her surname change. Most of the reasons mentioned sound logical. However, what happens in the case of a father wanting to change the child’s surname to his surname and the child was born out of wedlock? Well, in that case, section 25 (2) comes with an answer.

Section 25 (2) of the Births and Deaths Registration Act 51 of 1992

According to section 25(2), the father of the illegitimate child can make an application to the Director-General of the Department of Home Affairs for the change of the minor child’s surname born out of wedlock. However, if the mother is still alive, both parents must consent to the application. If, however, the mother does not consent to it, the father would have to make an application to the High Court to dispense with the mother’s consent and for the Director-General to apply their mind without the consent of the mother.

Court Application in relation to a surname of a child born out of wedlock

Should there be an application to Court, as just mentioned, the Court would have to look at what is in the best interests of the minor child. Various factors would be looked at. It is however suggested that ego reasons should not be the justification for making the application. In other words, the father wants the child to have his surname solely due to him being the father, even though the mother cares for the minor child.

Posted on 11 February 2025 by Telelaw

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