When a person has a child, they become a parent and the law says they have to take care of and are responsible for the child. The Children’s Act speaks about a parent’s ‘parental rights and responsibilities’ – parents have many rights and responsibilities but these are different for different people.
Different families do not always have the same rights and responsibilities and the Act explains these differences. All of the following are responsible for the care, contact, maintenance and guardianship of a child: married biological mother and father, divorced mother and father, and unmarried biological mother. The mother of a child has ‘full parental responsibilities and rights’ for that child even if she is not married to the father. Unmarried biological or natural fathers have a duty of financial support/maintenance and contact, and the court can grant guardianship and care.
Rights & responsibilities (refers to Chapter 3 of the Children’s Act)
The Act says that parent/s must:
- Take care of their child. Care means thinking about the child’s daily needs such as providing a safe home, food, education and love. The child’s development is part of care.
- Maintain contact with the child (keeping in touch even though maybe the parent is not living in the same home. It is about talking and/or seeing the child often enough to develop a relationship).
- Be a guardian to the child. Guardianship is the administrative part of taking care of a child. The biological parents who are married are both natural and legal guardians. A legal guardian is someone who is chosen to be a guardian either in a will or by a court. In certain circumstances, a mother can also be the guardian of her unmarried child’s children. For example, her child is under age or mentally or physically challenged.
- Make sure that the child has financial support or maintenance. This means that both parents must provide for the child’s needs and how they do this depends on how much money the parents have. When a child is cared for, they have a home, are protected from harm and are fed and supported each day.
Parents or guardians are expected to:
- Look after the property of a child and give or refuse consent if the child wants to sell property like a house.
- Act for the child when doing anything official like entering into a contract or when the child needs to go to court.
- Say yes or no if a child asks for permission to get married, be adopted, leave South Africa or get a passport.
The Act says a caregiver is someone other than the parent or guardian who is taking care of a child. It could be a foster parent, a community caregiver or even the head of a child-headed household. Caregivers have a responsibility of contact and care, depending on a court decision and the relationship to the child.
A caregiver who takes care of a child occasionally or for a period of time may not have any parental responsibilities over the child but they should still safeguard the child’s health, well-being and development. The caregiver should also protect the child from maltreatment, abuse, neglect, filth, discrimination, exploitation and any other physical, emotional or mental harm.
Adoptive parents have the same responsibilities as the natural parents: care, contact, maintenance and guardianship.
Parental rights & responsibilities of unmarried fathers (refers to Chapter 3, Section 21 of the Children’s Act)
A biological father that is not married to the mother loses his parental responsibilities and rights, but he must still pay half of the maintenance for his child. Some unmarried fathers want to have a relationship with their child and the law says these fathers can claim some rights, but they need to prove some things first. ‘Proof’ is something physical that can be used to show that the father has been helping to provide for his child, such as shopping receipts or bank statements that prove that he has sent money or bought things for his child.
“The mother of a child has ‘full parental responsibilities and rights’ for that child even if she is not married to the father.”
A biological father must prove that he:
- was living with the child’s mother in a serious, long-term relationship at the time of the child’s birth;
- wants to claim paternity of the child, which is determined through a blood test;
- chooses to pay customary law damages. This is a traditional practice where the unmarried father must pay the parents of the unmarried mother compensation for having sex with their daughter outside of a marriage and making her pregnant;
- contributes to the child’s upbringing;
- contributes or tries to contribute to the maintenance of the child. Maintenance is an amount of money paid by a parent who does not live with child to help with the upkeep of the child. A court may order a parent to pay maintenance.
Person claiming paternity (refers to Chapter 3, Section 26 of the Children’s Act)
Every child who is born in South Africa is registered in terms of the Births and Deaths Registration Act. If a mother is not married to the father then she can leave out the father’s name in the registration. A father who wants to claim paternity may ask the mother for permission to be identified as the father on the Birth Registration. The mother may refuse to give her permission and then the father will have to go to court and ask for an order showing that he is the father. The father can also ask the court for permission if the mother is mentally ill, or she has passed away or she cannot be found anywhere. It is then up to the High Court to decide if it is in the child’s best interests to give the father guardianship rights.
Exclusions from claiming paternity:
- a rape of or incest with the mother of the child;
- the person is biologically related to a child because of artificial fertilisation;
If a man and woman are going out together – like a girlfriend and boyfriend – and the woman falls pregnant, it is assumed that her boyfriend is the biological father. The boyfriend will then need to give proof that he is the father if he wants to claim paternity.
Assignment of guardianship (refers to Chapter 3, Section 27 of the Children’s Act)
Natural guardians have a legal duty to support their children and must use their money to support the children. Legal guardians have no such duty and do not have to use their own money to support the children.
There are two ways in which a person can become a child’s guardian, if they’re not the parent of the child:
- by a decision of the High Court acting as the ‘supreme guardian’ of all minors, or
- in a will that was written by a sole parent or sole caregiver who passed away. The person named in the will must be a fit and proper person who is law abiding and able to take care of a child.
A will is a legal document that explains how someone wants their property to be shared out after they have died. The person who is named as a guardian in a will can only become a guardian after the death of the parent and if they accept the new responsibility.
Co-exercise of parental responsibilities (refers to Chapter 3, Section 30 of the Children’s Act)
More than one person can have parental responsibilities and rights for the same child. When people share these duties, they are called co-holders and they have the power to make independent decisions about the care of the child. It is important to remember that anyone who has parental responsibilities and rights must listen to the views and wishes of the child before they make a decision that will affect the child. Children are expected to obey the ‘reasonable’ orders or requests of their parents.
Co-holders of parental duties and rights can make decisions about the care, contact, maintenance and guardianship of a child. They can also make a decision that will affect the child’s living conditions, education, health, personal relationships or the child’s well-being.
Termination, extension, suspension or restriction of parental responsibilities & rights (refers to Chapter 3, Section 28 of the Children’s Act)
Co-holders of parental rights and responsibilities, anyone who is interested in the child’s well-being, or a family advocate can ask the court to put aside a person’s parental rights and responsibilities for a short time. They can even ask the court to stop some, or all, of a parent’s rights and responsibilities.
The High Court is the Supreme Guardian of all children
When the High Court is asked to choose a guardian for a child, it does not have to be the child’s parent as long as the choice is in the best interests of the child. The High Court will look at the relationship between the child and this person and also at the relationship the child has with the previous guardian. Parental responsibilities and rights can be limited or even stopped by the court.