Confirming a father’s Parental Responsibilities and Rights to his Child
In the past, the terms Custody and Access was used in relation to the rights of parents to children. Now the terms Care and Contact are used. The term visitation may also be mentioned as well. According to the Children’s Act of 2005, both parents have full parental responsibilities and rights in relation to a child. There are however certain exceptions. If there is a dispute regarding that, then the father may have to make an application to the High Court confirming his responsibilities and rights and enforcing them. This can turn out to be a costly affair. You may do it yourself. If, however, a father has to take that route, it is strongly suggested that he gets hold of an attorney. – Adv. Muhammad Abduroaf LL.B LL. M – Advocate of the High Court of South Africa.
The Court Application
A Notice of Motion should be drafted. This notice is supported with a Founding Affidavit. Sometimes confirmatory affidavits are attached as well. The documents would further be filed with the Office of the Family Advocate. Once the Application is served on the mother, she would then have an opportunity to file her opposing papers (if any). The father will then have an opportunity to reply. Once a date is provided by the Registrar of the Court, the matter would be argued before a Judge who would make a decision with or without a Family Advocate’s Report. Urgent applications can also be made, but here an experienced attorney and advocate are required as time is of the essence.
What the father would basically be asking for is the following:
An Order directing that the parties (mother and father) are co-holders of parental responsibilities and rights in respect of the minor child, in terms of the Children’s Act, 38 of 2005 (“the Children’s Act”) as follows:
- the parties are co-holders of guardianship over the minor child as provided in Section 18(2(c); 18(3); 18(4) and 18(5) of the Children’s Act;
- the parties shall be co-holders of parental responsibilities and rights of care and contact in respect of the minor child as referred to in Section 18(2)(a) and (b) of the Children’s Act; and
- How such rights of care and contact shall be implemented.
The Court will hear the matter and make a decision. If all goes well, the Court would grant the Order confirming the father’s parental responsibilities and rights.
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