What Are Father’s Child Custody Rights In Terms Of The Law?

The biological married father in terms of Section 20 of the Children’s Act No 38 of 2005 is defined as someone who has full parental responsibilities and rights in respect of the child:

1. “If he is married to the child’s mother, or
2. If he was married to the child’s mother at-
3. the time of the child’s conception;
4. at the time of the child’s birth;
5. any time between the child’s conception and birth.”

On divorce, the biological married fathers have the following father’s child custody rights, contact, care, guardianship. Biological fathers can even become the primary care givers of the child/children. Primary residence of the child/children can be awarded to the father if for example, the mother is an alcoholic or is a substance abuser with no prospect of reforming.

It is generally accepted today, which is a great departure from the period up to the 1990”s that fathers can be as good as mothers regarding primary care giving even of babies and small children.

Even if it is not in the best interest of the child, to live with the father, he has the right to have contact (access) to the child by arriving at a settlement with his estranged wife as to what would be in the best interest of the child. In the case of babies, the father can normally see his child at times convenient to the mother, bearing in mind that she is attending on an almost full time basis in rearing the child and that routine is a priority.

In the case of older children, there is no hard and fast rule and contact is always subject to the social, educational and religious activities of the child/children. Normally, although I stress that this is not a rigid rule, fathers see their kids every second weekend, on long weekends, fathers day, alternative school holidays long and short and every alternative Christmas day.

In my experience, everything depends on the relationship between the estranged parents. If the estranged parents have a good relationship, then often, the mother will ask the father to look after the children, outside of any court agreement, whereas where there is a acrimonious relationship, the father will be expected to stick to the letter of the court agreement.

Part of the parental responsibilities of a divorced father is that he will still have guardianship over the child/children which mean that if the child requires a Visa or consent to marry, assuming the child is underage, the father will have to consent thereto.

The law differentiates in the definition of an unmarried biological father. In terms of Section 21 of the Children’s Act, the biological father acquires full parental responsibilities and father’s child custody rights in respect of the child-

1. if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
2. if he , regardless of whether he has lived or is living with the mother-
3. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father ( i.e. if the court confirms his paternity) or pay damages in terms of customary law;
4. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period ; and
5. contributes or has attempted in good faith to contribute towards expenses in connection with maintenance of the child for a reasonable period.
6. if there is a dispute between the biological father referred to in sub- section (1) and the biological mother of a child with regard to the fulfillment by that father of the conditions set out in sub-section (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.

The parental responsibilities and father’s child custody rights of a divorced biological father and of an estranged unmarried father are exactly the same as detailed above. They both have rights of contact (access), care (custody) and guardianship and the best interests of the child becomes important on how these rights will be exercised.

It is important to remember that contact to a child is not dependant on the payment of maintenance. This is an aspect of the law that must be looked at carefully.

DOES THE MOTHER HAVE ANY SAY AFTER THE FATHER HAS ABANDONED THE CHILDREN FOR MANY YEARS, IS SHE ALLOWED TO DENY THE FATHER ACCESS BECAUSE OF THE ABANDONMENT?

Phased in access is often considered when there has been a substantial break in contact between the non custodial parent or other persons seeking access and the child, or where such a relationship has never existed. It serves gradually to reintroduce the child to the non custodian whilst minimizing the potential traumatic effects of this process. The assistance of a psychologist or psychiatrist may be invoked.

Depending on the relationship between the child and the biological father, there may be instances where no access is granted to the father who has not seen his children for many years. Everything will depend on the facts. South African courts prefer to leave the way open and usually after prescribed conditions- such as that the parties undergo counseling or participate in mediation- have been met.

In extreme cases where clearly, there has been a history of abuse such as emotional, physical and mental abuse in the past, the father will have to show the court that he is a changed person and in these instances, he should have limited supervised access to the child/children. In these cases, the father is accompanied by a social worker if he wishes to have contact to the child for example this type of access will be used in instances where a father is a recovering alcoholic or drug addict.

A divorced biological mother can apply to the High court and a separated biological mother can apply to the children’s court for an order to terminate access in severe cases. Therefore, I repeat, there is no hard and fast rule, and everything depends on common sense, expert reports of social workers and psychologists and what is in the best interest of the child.

Cases in which access was suspended or refused are set out in The Law Of Access To Children by Lawrence Schafer are as follows:

In Pogieter v Potgieter, the father was “addicted to drink”, behaved in a “riotous manner”, used abusive and disgusting language and had threatened the mother with violence. His behaviour had an obviously detrimental effect on his children. The judge refused to deny him access completely but suggested that he make a fresh application a year later.

In Soller NO V G, exemplifies the circumstances in which access might be refused out right. The divorce and subsequent proceedings were charactised by a remarkable degree of bitterness and animosity between the parents. The decree of divorce had expressly precluded “reasonable access to the said children, such including telephonic access.” Sole custody and sole guardianship were awarded to the mother. But the father was advised of his right to apply for variation of this order “should the circumstances vary”. He did so and was granted access shortly afterwards. This was just the tip of the iceberg. The various issues between the parents engaged the attention of at least twelve judges within one division and the litigation was characterised by “ extraordinary levels of irrationality”. In the circumstances, the father was refused access totally

The real problem with all these applications is that it appears that there is a grave shortage of family advocates, people who are specially assigned by the High court to attend to the resolution of these matters, with the result that the matters can take months to resolve.

I am unaware of what the situation is in the children’s court where there are no family advocates but decisions are predominately made by social workers but have heard it on good authority that there is a shortage of social workers as well which only prolongs the process. It is accordingly impossible to state with certainty how many months it takes for disputes to be resolved.