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.

Posted on 11 February 2025 by Telelaw

How we deal with divorce matters at our law offices
With extensive experience in family legal matters, we have found divorce, child custody and child maintenance to be the most commonly dealt with legal matters. By observing its popular demand for effective legal services, we have compiled easily accessible legal pieces containing free, expert legal advice for your convenience. Do feel free to visit our online store in which we make it easy for you to purchase your online consultation in a quick and easy manner. Are you interested in a one on one consultation for your divorce? You can now purchase your divorce consultation by virtue of our online store today. Alternatively, do feel free to contact our law offices on 021 424 3487 for online appointment for a professional legal consultation today. Our law offices are situated in the heart of the buzzing CBD at Suit 702, 7^th floor, The Pinnacle, Cape Town.

Family law consultancy – the online operation

We have managed to develop an efficient method on how you can get connected with us through our online appointment method. The way it works is that you may call our offices on 021 424 3487 for an online appointment. When calling our law offices, our friendly receptionist will be more than pleased to make your online appointment for you – don’t not despair, this literally takes seconds! The online appointment can be made for any family legal services you require. These will be fall into the following categories:

Child Maintenance
Ante-nuptial Contact
Change Matrimonial Property Regime
Child Adoption
Child Custody and Access
Domestic Violence Protection
Family Trust Registration
Fast Unopposed Divorces
Non-Compliance with maintenance orders
Parenting Plans
Postnuptial Contract Registration
Pre-nikkah Agreement

You will receive an automated email and SMS once the online appointment has been made for you. Connect with us today!

Divorce in South Africa – who gets what?

We have now made our legal products and services easily accessible from our website by placing them directly onto our home page; making our home page easy to navigate. Simply click on the link below and download our free divorce product toolkit below: Free Divorce Tool Kit Our law offices are conveniently situated in the heart of the buzzing CBD at Suit 702, 7^th floor, The Pinnacle, corner of Strand and Burg Street. Our law offices offers you the luxury of a professional setting with free Wi-Fi for your convenience. Call our offices and make an online appoint today for your professional legal consultation. Connect with us!

Questions to ask a divorce Attorney on first visit

During your legal consultation, you may have many questions about the way forward with your divorce. The legal expert will clarify all your questions. The most common questions we often faced with are: