The promulgation of the Children’s Act (“the Act”) fundamentally changed South African legal structures governing the relationships between parents and their children. The Act now provides legal mechanisms for unmarried fathers, who have not automatically been vested with parental rights and responsibilities, to obtain such rights and responsibilities in respect of their minor children. What follows is a basic explanation of the processes an unmarried father may go through to establish any parental rights and responsibilities he may have in respect of his minor children.
Prior to explaining the processes of establishing parental rights and responsibilities, it must be noted that any parental rights and responsibilities should only be awarded if it is in the best interests of a child and it must be noted further that whether or not an unmarried father has such rights and responsibilities does not have any effect on the legal obligation placed on him to contribute towards the maintenance of his minor child. Parents should also be aware that it is incorrect to deny a parent contact with a minor child if the parent fails to contribute to the maintenance of the minor child.
The first issue that an unmarried father faces is whether or not the unmarried father is in fact the father of the minor child in question (“paternity”). When a dispute arises regarding an unmarried father’s paternity, it falls to the father to launch an Application in terms of Section 26 of the Act either to request an amendment to be effected to the registration of birth of the minor child, or apply to Court to confirm his paternity if the mother refuses to consent to an amendment; is mentally ill; cannot be located; or is deceased.
Paternity Applications in terms of Section 26 of the Act usually require that the minor child and father in question undergo DNA testing. This can be a painful process for babies and some mother’s refuse to subject their baby to any DNA testing on this basis. While the Courts have acknowledged the need to protect minor children from harm, when a mother refuses to allow a minor child to undergo DNA testing, the court may draw an inference from such a refusal in the absence of a DNA test taking place.
If paternity is not in dispute, or if paternity has already been established, an unmarried father can begin the process of establishing any parental rights and responsibilities he may have by using the following procedures:
1) PARENTING PLAN:
Generally speaking, the easiest way to establish parental rights and responsibilities is for parents to conclude a Parental Rights and Responsibilities Agreement (or “Parenting Plan”) in terms of Section 22 of the Act. The conclusion of any Parenting Plan is of course only possible if the parents have a sufficiently good relationship to discuss and agree on the terms of the Parenting Plan.
For a Parenting Plan to be valid it must be in writing and contain particulars in respect of the care of, contact with, and financial responsibility for the minor child in question. Parenting Plans can also contain any additional aspects which parents deem necessary or relevant to the minor child’s upbringing.
Once the Parenting Plan has been concluded it must either be registered with the Family Advocate, or the parties can request that the Parenting Plan be made an order of court. In practice it is usually better to have the Parenting Plan made an order of court to ensure the enforceability of the Parenting Plan and avoid unnecessary disputes.
Section 21 of the Act affords unmarried fathers automatic parental rights and responsibilities in certain circumstances. While this is provided for in the Act, in practice it generally never occurs due to disputes between the parents. If the mother of the minor child in question does not agree that the unmarried father satisfies the requirements contained in Section 21, the matter becomes disputed and according to Section 21(3), the dispute must be referred to mediation to a family advocate, social worker, social service professional or other suitably qualified person.
A process of mediation can only take place if both parties are willing to be involved and undergo the process. Mediation is the process whereby the parties meet to discuss their dispute and a mediator attempts to assist them in finding an amicable resolution to the dispute. A mediator cannot force a party to accept anything and is basically there as an objective referee between the parties. Any party to mediation may have the outcome reviewed by a court.
Once the mediation process has been completed, either a certificate of Non-Attendance will be issued, or a Certificate detailing the issues that were resolved and those that remain unresolved will be issued. The outcome of mediation should always be registered with the office of the Family Advocate and it is always advisable that mediation outcomes be made into court orders in the event that all disputes are resolved in the process.
While the Act prescribes that the disputes must be referred to mediation, some legal practitioners have failed to comply with the Act itself and have launched applications which ultimately can result in adverse cost orders for prematurity if mediation has not been attempted in accordance with the provisions of the Act.
3) THE FAMILY ADVOCATE:
Once mediation has been attempted in accordance with the Act and disputes remain unresolved, an unmarried father may take matters further by doing one of the following:
- Requesting a local office of the Family Advocate to conduct an investigation into the matter; or
- Launch an application at court in terms of Section 21 and 23 of the Act to have his parental rights and responsibilities confirmed and established.
A Family Advocate investigation is usually a process of interviews and assessments to determine what the relationship between all relevant parties is and how a parent’s exercise of their parental rights and responsibilities should be structured to cater for the best interests of the minor child.
Once the investigation has been concluded the Family Advocate will issue a report of its findings and issue a recommendation that it believes is in the best interests of a minor child. In some cases Family Advocate reports can adequately resolve disputes between parties and enable them to reach agreement on the exercise of parental rights and responsibilities.
While a Family Advocate investigation is not a required step in establishing parental rights and responsibilities, it is always beneficial and the courts generally refer matters for investigation when one has not yet been conducted as the investigation can assist the court in reaching a decision.
4) COURT APPLICATION:
As a last resort and in the event that all other processes have failed to resolve any disputes, an unmarried father may launch an application in a Family Court, Children’s Court or High Court to have his parental rights and responsibilities established. When considering launching a court application it is always advisable to approach an experienced Family Law practitioner who would be able to properly advise and assist the unmarried father with the application process.
Court applications involve the preparation and filing of affidavits in support and opposing the relief claimed by an Applicant. Any argument in court is restricted to what is contained in the affidavits themselves.
Due to the nature of a court application it is always advisable to have documentary evidence to support the contents of your affidavit. Applications should usually include attachments to affidavit which include but are not be limited to, Psychological Assessment Reports, School Reports, Mediation Outcome Certificates, Family Advocate Reports and correspondence between parents.
In applications dealing with the establishment of parental rights and responsibilities, it is always beneficial to have psychological tests conducted by a professional on all relevant parties as the results of such tests assist the court in reaching any decision.
As previously mentioned, it is always useful and advisable to request the Family Advocate to conduct an investigation into the matter as the investigation report will always be of assistance to any court that has been requested to adjudicate a dispute between parents in respect of parental rights and responsibilities.
From the above it is clear that there are various processes an unmarried father can undertake to establish any parental rights and responsibilities he may have in respect of his minor children. While there are various options available to an unmarried father, in light of the nature of the rights and who they will impact, it is always advisable to obtain the services of an experienced Family Law practitioner who can advise and assist in establishing parental rights and responsibilities.