Parental Rights and Responsibilities

 

What are the different parental rights and responsibilities?

The Children’s Act sets out all the details regarding parental rights and responsibilities. In summary, rights that a person may have in respect of a child include the right to care for the child, contact of the child, guardianship and the contribution to the maintenance of the child.

Who has rights?

Rights in respect of a child vest with certain individuals. Below is an exposition of how these rights vest and whom may be vested with these rights.

Rights and responsibilities of mothers

The biological mother of a child will by default be vested with full parental responsibilities and rights in respect of the child. The biological mother will be vested with full parental rights and responsibilities whether married or unmarried.

If the biological mother of the child is herself an unmarried child who does not have guardianship in respect of her child and the biological father of the child does not have guardianship in respect of that child, then the guardian of the child’s biological mother is also the guardian of the child.

Rights and responsibilities of married fathers

The biological father of the child has full parental rights and responsibilities in respect of the child if either he is married to the child’s mother, or if he was married to the child’s mother at the time of the child’s conception, the time of the child’s birth or any time between the child’s conception and birth.

Rights and responsibilities of un-married fathers

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of the above paragraph regarding “married fathers” will acquire full parental responsibilities and rights in respect of the child if at the time of the child’s birth he is living with the mother in a permanent life-partnership or, regardless of whether he has or is living with the mother:

  1. consents to be identified as the child’s father or successfully proves his paternity as the child’s biological father or if he pays damages in terms of customary law and;
  2. contributes or has attempted to contribute to the child’s upbringing for a reasonable period and;
  3. contributes or has attempted to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Rights and responsibilities by agreement

Any person who has parental rights and responsibilities in respect of the child may enter into an agreement providing for the acquisition of parental rights and responsibilities in respect of the child with the biological father if he has not acquired rights as explained in the above paragraphs or with any other person having an interest in the care, well-being and development of the child.

This agreement has a prescribed format and prescribed particulars are necessary. The agreement will only take effect once registered with the family advocate or if it is made an order of the High Court, a divorce court in a divorce or the children’s court on application by the parties to the agreement.

For further advice on parental rights and responsibilities and well as details of parental rights and responsibility agreements, feel free to contact us.

 

Sources:

Children’s Act, Act 38 of 2005