One of the most acrimonious and emotionally wrenching experiences in life must be the divorce process, which nowadays take place with almost monotonous regularity.
Recently, there have been some changes to the rules that have evened out the results of divorce in the areas of parental rights, controls and responsibilities. In the past, the custody battle tended to favour mothers. The mother and child bond was deemed naturally closer; men were seen to be breadwinners and therefore unable to provide the necessary home care while working. Unmarried mothers of age automatically had sole custody of the child, while the father – if not seen to have had the decency to marry the mother or the mother having refused to marry him – could lose his access rights entirely.
The new world of relationships
Modern life has changed relationships and perceptions to a considerable degree. Divorce is more commonplace, fathers’ roles have become more important in the development of the child, and men have become more aware of their rights as parents. Single parent families and parents living separate lives are seen as more acceptable – and the law has had to adapt to a changing world.
Terminology: The word ‘custody’ – seen as too possessive in connotation, has been changed to a more responsible concept of ‘care’. Likewise ‘access’ has been replaced with the more amenable, connective word, ‘contact’. Currently both parents have equal ‘care’ which broadly means that they have equal say in the big decisions like schooling, religious upbringing, etc. ‘Contact’ means that while children may be living with one parent, the other has specifically defined rights to be with the children at convenient times to both parents.
Rights of unmarried fathers
Not long ago there wasn’t even a process, through which a father of a child born out of wedlock could approach the courts for visitation rights, never mind any substantial say in the rearing of the child. Despite having no ‘contact’ rights, the father was obliged to pay maintenance. When unmarried mothers wanted to move away – even to another country – they could do so without getting permission from the father.
However, today the father has equal rights with regard to ‘care’ and can take an active interest in the upbringing of his child that goes beyond just maintenance – such as where the child is based, his or her schooling and full expected participation in sports, hobbies, family days, etc. The mother is not allowed to simply move the children out of his reach where he would not be able to personally contribute to their upbringing, without his express agreement.
The unmarried, biological father has full parental rights to his child if he:
- Is living with the mother of the child in a permanent life-partnership at the time of birth.
- Has agreed to be identified as the child’s father at birth.
- Has successfully applied to be identified as the child’s father (this means that if an unmarried mother does not want to acknowledge the father of her child, the father can apply for a court order which forces the mother to put his name on the child’s birth certificate or prove his paternity with a paternity test).
- Has contributed, or has tried to contribute, towards maintenance expenses for the child for a reasonable period.
- If the mother has denied the father access to their child, an unmarried father can exercise his rights by applying for care and/or contact rights at the Children’s Court. Guardianship rights must be lodged at the High Court. If the father wants care/contact rights and to be the guardian of his child, he must bring the application in the High Court.
- The mother, if the primary parent, no longer has the right to prevent visitation rights of a biological father if she is not married to him.
Rights for divorced fathers
A great departure from the 1990s is the acceptance today that fathers can be as good as mothers in providing primary care to children, including small children and even babies. This new perception has strengthened a father’s rights in several areas:
- Even after a divorce, the biological father of a child still has full parental rights to his child unless a court orders otherwise.
- Depending on circumstances, and always with the child’s best interests at heart, a child may live primarily with either spouse. The primary parent will be responsible for supervising the daily life of the child, but will also be required to allow the other parent opportunity to see the child, maintain a personal relationship and spend the time communicating with the child.
- The new laws allow for both parents to safeguard the child, including representing the child in legal matters and consenting to a child’s marriage, adoption, or even removal from the country, as well as the application for a passport.
A helping hand
- Financial constraints: If a father (married or unmarried) struggles to pay for a child’s needs such as school fees, he may apply for a child social grant. The Child Support Grant offers monthly income support to adults who care for children, under the age of 18, born after 31 December 1994. To qualify for the grant, a single parent or caregiver must earn R3 300 or less per month. Fathers (or mothers) can apply for a grant at the nearest South African Social Security Agency (SASSA) office, for free.
- Introduction of a parenting plan: To crystallize the new agreements, the idea of a parenting plan has been devised that functions as a contract between the parents. The parenting plan then becomes an order of court that offers recourse if one or the other spouse isn’t playing by the rules.
- Paying maintenance: Depending on case by case circumstances, this does not function as quid pro quo for contact rights. Simply paying maintenance may not necessarily guarantee visitation rights. However, if there is a dispute about maintenance, then contact between the father and child may not be withheld – such action would amount to contravention of a court order and may be punished severely.
Find the personal help you need
At Simpsons, we also handle family law including divorce and the complications of care and contact where children are concerned. We advise, guide, and help parents negotiate what is best for both spouses and the children. We offer each client a personalised service, dealing with the financial aspects as well as the quagmire of emotions that so often accompany unhappy family matters. Our approach is framed by a need to understand our client’s position, and driven by empathy, compassion and a focus on individual attention.
Find out more about us at: www.simpsons.co.za
