Oh baby! What rights do unmarried dads have with their children

South African law automatically gives full parental responsibilities and rights to a child’s biological mother. But what rights do fathers have?

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

Parental responsibilities and rights are defined by law as the responsibility and right to care for the child, maintain contact with the child, act as the guardian of the child and contribute towards their maintenance.

But if a father wasn’t married to his child’s mother around the time of conception and birth, he can still get these rights in his child’s life if he was living with the mother in a permanent life partnership at the time of the birth, or if he agrees to be identified as the child’s father (or pays damages in terms of customary law), and has contributed or tried to contribute towards the child’s upbringing and expenses for a reasonable period.

If there is a dispute between the mother of the child and the unmarried father about whether or not he is entitled to acquire parental rights and responsibilities, the dispute needs to be mediated by a family advocate, social worker, social service professional or other suitably qualified person.

However, if a father doesn’t choose to acquire parental responsibilities and rights, he still has the obligation to maintain his biological child.

Confirming paternity

An unmarried biological father can also apply for an amendment to the registration of the birth of the child identifying him as the father of the child, if the mother consents to the amendment. The biological father can apply for an order confirming his paternity if the mother refuses to give her consent to the amendment of the birth registration details, can’t give consent due to mental illness, cannot be located or is deceased.

But what if a purported father denies paternity and refuses to contribute towards the maintenance of a child? If it can be proved that the man had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is presumed to be the father of the child unless there is contradictory evidence.

Once paternity has been established, the father of the child has to contribute towards maintenance. Maintenance is calculated by taking into account the financial means of the parents and the reasonable needs of the child.

The Children’s Act 38 of 2005 has made some big changes in terms of unmarried biological fathers now being able to automatically obtain rights. While many people see these changes as a positive development, the automatic transfer of responsibilities and rights to biological fathers can lead to difficulties and tensions if he and his child’s mother are no longer in a relationship.

What if a couple has a one night stand that results in the birth of a child, but the man and woman have no interest in seeing one another again? The mother does not tell the father that she is pregnant and assumes that she is entitled to make all decisions about the child’s well-being and day-to-day living arrangements. The father discovers that the child may be his and submits to the necessary tests. Once paternity has been established, the father repeatedly makes contact with the mother and tries to see the child and be a part of the child’s life, as well as sending gifts and money and trying to help with the maintenance of the child. It is conceivable that a court would find that the father has automatically acquired full parental responsibilities and rights through his efforts to be a part of the child’s life. He can then assert his position as the father of the child, and what was intended as a one-night event becomes a life-long relationship.

The new possibilities created by the Act show that while favouring a mother’s ability to care for a child over a father’s was important in years gone by, it is no longer the yardstick that is used to measure the best interests of a child and there is legislation to support fathers who want to be involved in their children’s lives.

By Gillian Lowndes – partner and family law specialist at Lowndes Dlamini