Fathers' rights and responsibilities

Many fathers are told, or come to believe, that they have no say in their children's lives once a relationship ends. That is often not true. The Children's Act 38 of 2005 recognises that children benefit from a relationship with both parents, and it gives fathers clear rights and responsibilities.

This guide explains how the law works for married and unmarried fathers, and what you can do if you and the child's mother disagree.

The child's best interests come first

Every decision about a child under the Children's Act is guided by one question: what is in the best interests of the child? This is the starting point for parents, the Office of the Family Advocate and the courts.

When deciding what is best, the factors that are considered include:

• the child's relationship with each parent and with other family members;
• each parent's ability to care for the child and meet their needs;
• the effect a change in living arrangements would have on the child;
• the child's age, maturity, background and culture;
• the need to protect the child from harm, abuse or conflict.

Depending on their age and maturity, the child's own views are also taken into account. The law does not favour mothers or fathers. It focuses on the child.

What "parental responsibilities and rights" means

The Children's Act talks about parental responsibilities and rights rather than "custody" and "access". They include:

• care, which covers day-to-day looking after the child and where the child lives;
• contact, which means spending time with the child and keeping in touch;
• guardianship, which covers major legal decisions, such as consenting to the child's marriage, getting a passport or leaving the country;
• contributing to maintenance, which means supporting the child financially.

A parent can hold all of these or only some of them. Where both parents are guardians, both generally need to agree to big decisions, such as the child travelling out of South Africa or applying for a passport.

Married fathers

If you were married to your child's mother when the child was conceived or born, or at any time in between, you have full parental responsibilities and rights. Divorce does not take them away. The court dealing with the divorce can make orders about where your child lives and how much time they spend with each parent, always based on the child's best interests.

Unmarried fathers and section 21

Section 21 of the Children's Act sets out when an unmarried father gets full parental responsibilities and rights automatically, without going to court. In general terms, this happens in either of two situations.

1. You were living with the mother in a permanent life partnership when the child was born.

2. Whether or not you lived with the mother, all three of these apply:

• you consent to be identified as the child's father, or you successfully apply to be identified as the father, or you pay damages under customary law; and
• you contribute, or have tried in good faith to contribute, to the child's upbringing for a reasonable period; and
• you contribute, or have tried in good faith to contribute, to the child's maintenance for a reasonable period.

The law doesn't give a fixed number of months for "a reasonable period", and what counts as a "permanent life partnership" depends on the facts. That is why it matters to keep records. Save proof of maintenance payments, messages showing your involvement, photos, school and medical records, and any attempts you made to see or support your child, especially if those attempts were blocked.

If there is a dispute

If the mother disagrees that you meet the section 21 requirements, the Children's Act says the dispute must first go to mediation. This can be with a family advocate, a social worker or another suitably qualified person. If either of you is unhappy with the result, you can ask a court to review it.

If you don't meet the section 21 requirements, you can still apply to court for contact, care or guardianship. The court will look at your relationship with the child, your commitment to them, and what is best for the child. Ask the clerk at your local Magistrate's Court where to apply, or get advice first. Read Finding legal help you can afford.

In most cases, the best first step is to try to agree on a parenting plan. Read Parenting plans and the Family Advocate.

Myths and facts

Getting support

Fighting to stay in your child's life can be draining and lonely. Reaching out for support is a sign of strength.

• Legal Aid South Africa Advice Line: 0800 110 110.
• Lifeline South Africa: 0861 322 322, 24 hours a day.
• SADAG Suicide Crisis Helpline: 0800 567 567, 24 hours a day.
• Childline South Africa: 116, if your child needs someone to talk to.
• GBV Command Centre: 0800 428 428, for all genders, 24 hours a day, if there is abuse.

You can contact our support team at /contact?topic=support. If you have experienced abuse or false accusations, you can report it anonymously at /report. More helplines are listed at /resources.