Parenting Plans and the Law – Draft and Register you Plan

Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child. Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.

Optional situation – section 33(1)

Section 33(1) of the Act states the following:

“(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”

This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.

Mandatory situation – section 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:

“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”

Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached. As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:

“A parenting plan may determine any matter in connection with parental responsibilities and rights, including- (a) where and with whom the child is to live; (b) the maintenance of the child; (c) contact between the child and- (i) any of the parties; and (ii) any other person; and (d) the schooling and religious upbringing of the child.”

Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:

(1) Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration. (2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.

Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied. Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:

“(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.”

Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.

Now we look at the Act and Regulations that come into play in preparing a parenting plan.

Optional parenting Plan – sec 33(1)

With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8. With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.

Mandatory parenting plan – section 33(2)

According to section 33 (5) of the Act:

“In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.”

Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:

(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.

Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans. The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:

(1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.

It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate. Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan. Court proceedings for optional parenting plans Interesting to note is section 34 (6) of the Act where it states:

“Section 29 applies to an application in terms of subsection (2).”

Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above. Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child. Section 29 (5) states the following:

The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests. It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above. Contempt of Court The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court. Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.

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.

Posted on 11 February 2025 by Telelaw

Parenting Plans and the Law – Draft and Register you Plan

What is a parenting plan?

Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.

Who should agree on a parenting plan?

Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.

Optional situation – section 33(1)

Section 33(1) of the Act states the following:

Mandatory situation – section 33(2)

As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:

“A parenting plan may determine any matter in connection with parental responsibilities and rights, including-

(a) where and with whom the child is to live;

(b) the maintenance of the child;

(i) any of the parties; and

(ii) any other person; and

(d) the schooling and religious upbringing of the child.”

(2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.

Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied.

Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:

“(1) A parenting plan-

(a) must be in writing and signed by the parties to the agreement; and

(b) subject to subsection (2), may be registered with a family advocate or made an order of court.

(2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must-

(a) be in the prescribed format and contain the prescribed particulars; and

(b) be accompanied by a copy of the plan.

(3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must-

(a) be in the prescribed format and contain the prescribed particulars; and

(b) be accompanied by-

(i) a copy of the plan; and

(ii) a statement by-

(aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or

(bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person.

(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.

(5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-

(a) by the co-holders of parental responsibilities and rights who are parties to the plan;

(b) by the child, acting with leave of the court; or

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.

Now we look at the Act and Regulations that come into play in preparing a parenting plan.

Optional parenting Plan – sec 33(1)

With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.

Mandatory parenting plan – section 33(2)

According to section 33 (5) of the Act:

“In preparing a parenting plan as contemplated in subsection (2) the parties must seek-

(a) the assistance of a family advocate, social worker or psychologist; or

(b) mediation through a social worker or other suitably qualified person.”

Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:

(a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths;

(b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and

(c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan.

(2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child.

(3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.

The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:

(2) The parenting plan contemplated in sub-regulation (1) must be prepared:

(a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or

(b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.

Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan.

Court proceedings for optional parenting plans

Interesting to note is section 34 (6) of the Act where it states:

“Section 29 applies to an application in terms of subsection (2).”

Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above.

Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child.

Section 29 (5) states the following:

The court may for the purposes of the hearing order that –

a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court;

a matter specified by the court must be investigated by a person designated by the court;

a person specified by the court must appear before it to give or produce evidence; or

the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests.

It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above.

Contempt of Court

The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court.

Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.

Sharing is Caring

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

Frequently Asked Questions and Answers on Lawyers
Do you have any specific question on lawyers similar to that below? If yes, feel free to post it below. We will try to answer it for you.
What does it involve to be a lawyer?
There are various types of lawyer. Some do court work and other usually paper work, like contracts. Then you get lawyers who advise. However, whatever the type of lawyer, the work is hard and challenging as you need to advise and think a lot. At the end of the day, you need to find the best solutions and course of actions for your clients.
What subjects do you need to do to become a lawyer?
Languages are important.
What do you have to go through to become a lawyer?
You require a lawyer degree. Usually and LL.B. Thereafter, you need to do the required training for the specific course you decide to follow.
Are judges lawyers
Yes, they are lawyers as they studied law and apply it.
What do you have to do to become a lawyer?
You require a lawyer degree. Usually and LL.B. Thereafter, you need to do the required training for the specific course you decide to follow.
What is the monthly salary of a lawyer?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How much does it cost to go to law school?
You need to contact them.
How much do lawyers make in a year?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How long does it take to become a lawyer?
An LL.B could take 4 to 5 years.
How long do you have to go to law school?
It depends on part time or full time. You need to contact them.
What is the average salary for a lawyer?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How many hours a day does a lawyer work?
Lawyers can work long hours. Sometimes till late the evening and on weekends.
What type of education do you need to be a lawyer?
Usually an LL.B degree.
What do you do when you are a lawyer?
You apply the law the specific circumstances.
How many different types of lawyers are there?
There are many kinds. Attorney, Prosecutors, Judges, Advisors etc.
What are the skills needed to be a lawyer?
You should be able to read well digest a lot of information. Think logically and be sharp.
How long does it take to go to school to be a judge?
You cant go to school to be a judge. You are appointed based on your experiences.
What kind of bachelor’s degree do you need to be a lawyer?
LL.B
How long do you have to go to school to become a paralegal?
Usually a year.
Can you get a law degree without going to law school?
There are online degrees.
What do you actually do as a lawyer?
You apply the law to the facts.
Who do lawyers work for?
For their clients. Some work for the state as in the case of prosecutors.
What subjects in high school to be a lawyer?
Languages. You need to ask the University.
What are the benefits of a lawyer?
You help people. And if you work hard, you can earn a good income.
What do you do as a criminal lawyer?
Defend your clients. You represent them at Court.
How long does it take to get a law degree in South Africa?
Usually 4 years. If you do it part-time, it would take longer.
How do you become a paralegal?
Go to go to a school for paralegal studies. The Law Society has one.
What subjects do you have to do to become a lawyer?
Usually languages. You should contact the university accordingly.
What are the requirements for hiring a lawyer?
There are none. However, you should ensure that there is no conflict of interests.
How much do you earn as a lawyer?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
What are the requirements to get into law school?
Speak to the specific law school.
How much does it cost to go to law school?
Speak to the law school. The fees would vary from law school and year.
How long do you have to go to school to become a criminal lawyer?
The same as any other lawyer. However, you may want to do more criminal law related subjects at University.
How expensive is it to go to law school?
Speak to the law school. They should advise you accordingly. Some people do it part-time.
Is the law exam really that hard?
It depends how had you study. However, you need to be dedicated and work hard at it. If you do so, you will pass.
What jobs can you do with a law degree?
You can work in the private sector, or for the state. Some lawyers work in banks, other in big corporations.
How much do you earn when you are a lawyer?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How much does a prosecutor earn per month in South Africa?
You need to contact the Prosecuting Authority. A senior prosecutor would obviously earn much more.
How much money does a lawyer make in a year?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How many years does it take to get a law degree?
Usually 4 years. If you do it part-time, it will take longer.
How much money does a lawyer make in a month?
That would depend on the company the lawyer works for. Some work for banks, government, law firms and others for themselves.
How much does a social worker earn per month?
You need to find out by the specific social worker. Some are private, some work for the state.
What type of education do you need to be a lawyer?
And LL.B.
Is LLB a bachelor’s degree?
Yes, Its also an Honors Degree.
How long does it take to become a lawyer?
Usually 4 years.

Posted on 11 February 2025 by Telelaw

How do I find a property law firm in Cape Town that fits your needs?

Are you in the market to sell your home, flat, or immovable property? If that is the case, you may require the services of a property lawyer. The same may apply should you wish to become a purchaser of immovable property. The sale of immovable property is a legal transaction. Furthermore, it needs to be registered in the name of the purchaser. Having the right property lawyer on your side can avoid many issues in the future. Here are some tips:

Define Your Needs: Identify the specific legal services you require (e.g., family law, criminal defence, corporate law).
Research Online: Use legal directories;
Check Reviews and Ratings: Look for client reviews and ratings to gauge the firm’s reputation and client satisfaction.
Ask for Recommendations: Reach out to friends, family, or colleagues who may have had similar legal needs for personal recommendations.
Evaluate Experience: Consider the firm’s experience in your specific legal issue, including years in practice and case outcomes.
Schedule Consultations: Many firms offer free or less expensive consultations. Use this opportunity to meet attorneys, discuss your case, and assess their communication style.
Assess Costs: Inquire about fees and billing practices. Understand whether they charge hourly rates, flat fees, or contingency fees.
Trust Your Instincts: Choose a firm that you feel comfortable with and confident in their ability to handle your case.
Verify Credentials: Check the attorneys’ qualifications and any disciplinary history.
Consider Location: Proximity can be important for ease of communication and meetings.

Taking the time to research and evaluate different firms will help you find the right fit for your legal needs.

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.