Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much.  The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.
We are conveniently located in the Pinnacle Building, in the Cape Town CBD. Click here to call us on (021) 4243487 or send us an email.
However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child. Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child. Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:
  • at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else. However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half. The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.

Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much.  The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.

We are conveniently located in the Pinnacle Building, in the Cape Town CBD. Click here to call us on (021) 4243487 or send us an email.

However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child.

Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child.

Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:

  • at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else.

However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half.

The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

Should you require any other legal services and advice, not related to family law, visit Private Legal.

Related Post

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Seshego Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Seshego or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Seshego. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Seshego or any other city in South Africa.

What to do before visiting the Seshego Children’s Court

Before you approach the Children’s Court in Seshego, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Seshego has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Seshego Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Seshego Children’s Court

The Seshego Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Seshego Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Seshego Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Seshego.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Seshego Children’s Court

Once you complete the Form A and submit it to the Clerk of the Seshego Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Seshego Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Seshego Children’s Court

Once the Seshego Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Seshego Children’s Court Application tips 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, Seshego, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

What are twenty (20) common legal questions and answers in South Africa?

While legal questions can vary depending on country and circumstances, here are 20 common legal questions and brief answers. Keep in mind that these responses are general and may not cover all aspects of the law. If you have specific legal concerns, it’s always advisable to consult with a qualified attorney or advocate.
  1. What should I do if I’m involved in a car accident?

    • Answer: Ensure everyone is safe, call the police, exchange information with the other party, and document the scene.
  2. How do I create a legally binding contract?

    • Answer: Include offer, acceptance, consideration, legality, capacity, and intention to create legal relations.
  3. What is the process for filing for divorce?

    • Answer: It generally involves filing a Summons, serving the other party, and going through court proceedings.
  4. How can I protect my intellectual property?

    • Answer: Register trademarks, patents, or copyrights depending on the type of intellectual property.
  5. What is the difference between a will and a living will?

    • Answer: A will outlines distribution of assets after death; a living will expresses medical treatment preferences.
  6. How can I start a small business legally?

    • Answer: Register your business, obtain necessary licenses, and comply with tax regulations.
  7. What are my rights if I’m arrested?

    • Answer: You have the right to remain silent, the right to an attorney, and the right to a fair trial.
  8. How does insolvency work?
    • Answer: It generally involves the filing of a Court Application, attending a meeting of creditors, and the discharge of debts.
  9. Can I be fired without cause?

    • Answer: No
  10. What is the process for adopting a child?

    • Answer: It involves an application to the Children’s Court, where an adoption social worker gets involved. The process is outlined in the Children’s Act.
  11. What rights do tenants have?

    • Answer: Rights include the right to a habitable dwelling, privacy, and protection from unlawful eviction.
  12. How do I deal with workplace discrimination?

    • Answer: Document incidents, report to HR, and consult an employment lawyer if necessary.
  13. What steps should I take after being injured in a slip and fall accident?

    • Answer: Seek medical attention, document the scene, and consult with an attorney or advocate.
  14. Can I represent myself in court?

    • Answer: Yes, but it’s often advisable to seek legal representation for complex matters.
  15. What is the process for obtaining a patent?

    • Answer: File a patent application with the relevant patent office.
  16. What age is a child an adult?
    • Answer: 18
  17. Where do I get divorced?
    • Answer: You start the process by issuing a Summons out of the Court.
  18. How can I dispute a traffic ticket?

    • Answer: Follow the procedures outlined on the ticket, gather evidence, and consider consulting with an attorney or advocate.
  19. What rights do I have when stopped by the police?

    • Answer: You have the right to remain silent, the right to refuse searches, and the right to an attorney.
  20. How do I start the process of creating a will?

    • Answer: Consult with an attorney, list your assets, and specify your wishes for distribution. You can also do it on your own if you know what you are doing.

Top tips and tricks from a Senior Family Law Advocate on claiming maintenance for a five-year-old child in Randburg.

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 Randburg

Whether you claim child maintenance in Randburg, 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 Randburg.

The maintenance scenario – Randburg South Africa

In this article, we will deal with the following fictitious scenario, in a child maintenance matter:

  1. The Child is seven years old and attends school in Randburg
  2. The child is cared for by the mother who works in Randburg
  3. The mother works and earns a Salary of R 10 000
  4. The father sees the child every second weekend. He also lives and works in Randburg
  5. The child’s monthly expenses are R 6000 – 00 which includes food, clothing, accommodation, education, travel etc.
  6. The father earns a reasonable salary and can afford the R 20 000 – 00 per month
  7. 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 Randburg, it would be the maintenance court in Randburg. 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 Randburg, 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 Randburg Maintenance Court?

Once you have been notified of the maintenance court date by the Randburg 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 Randburg?

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 Randburg 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 Randburg 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, Randburg, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

 

 

 

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