What are child custody disputes? Read some questions and answer from mother and father.

Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved.  Parents care much more for their children than they do for worldly things.  Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress. Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.

What are the rights of an unmarried father to his children?

Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short 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.

May an unmarried father be the primary caregiver of a child born out of wedlock?

Many fathers would have been married to the mother. Others would have meaningfully partaken 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 marriage when it comes to fathers’ rights.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child,  and the father has parental rights and responsibilities over such a child,  he can obtain custody or primary care over the child.  What the law looks at is what is in the child’s best interest should such a request be made.  If it is indeed in the child’s best interest for the father to have custody over the minor child,  then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests.  Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child,  the court may require assistance from other parties.  For example, a social worker,  psychologist,  or the office of the family advocate.  This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care.  The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest.  Therefore, various factors have to be considered in determining what is in the child’s best interest.  If a party can prove that a child is being unreasonably neglected while in the other party’s care,  then that would be information that can be used against the other party.  One such factor would be the abuse of alcohol,  drugs,  and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters.  The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child.  What the law is concerned with,  is what is best for the minor child.  Many fathers can better care for a minor child than the mother.  In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth.  This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self.  This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live.  In most cases, the parties would agree that the child should reside with the mother.  When they do not agree on this issue the matter usually makes its way to the court.  This is when the court will have to determine what is best for the minor child. If the court determines that the minor child would best be cared for by the mother, then the court would make such an order.  However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child,  then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different.  However, the court is guided by the best interest of the child principle.  The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child.  In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.   We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws
Posted on by Telelaw

What are child custody disputes? Read some questions and answer from mother and father.

Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved.  Parents care much more for their children than they do for worldly things.  Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress.

Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.

What are the rights of an unmarried father to his children?

Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short 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.

May an unmarried father be the primary caregiver of a child born out of wedlock?

Many fathers would have been married to the mother. Others would have meaningfully partaken 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 marriage when it comes to fathers’ rights.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child,  and the father has parental rights and responsibilities over such a child,  he can obtain custody or primary care over the child.  What the law looks at is what is in the child’s best interest should such a request be made.  If it is indeed in the child’s best interest for the father to have custody over the minor child,  then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests.  Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child,  the court may require assistance from other parties.  For example, a social worker,  psychologist,  or the office of the family advocate.  This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care.  The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest.  Therefore, various factors have to be considered in determining what is in the child’s best interest.  If a party can prove that a child is being unreasonably neglected while in the other party’s care,  then that would be information that can be used against the other party.  One such factor would be the abuse of alcohol,  drugs,  and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters.  The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child.  What the law is concerned with,  is what is best for the minor child.  Many fathers can better care for a minor child than the mother.  In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth.  This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self.  This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live.  In most cases, the parties would agree that the child should reside with the mother.  When they do not agree on this issue the matter usually makes its way to the court.  This is when the court will have to determine what is best for the minor child.

If the court determines that the minor child would best be cared for by the mother, then the court would make such an order.  However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child,  then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different.  However, the court is guided by the best interest of the child principle.  The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child.  In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.

 

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

Related Post

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 by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!