Fathers Rights Article 2: Rights and responsibilities of unmarried fathers

In our previous article, we briefly discussed the rights of unmarried fathers to their children and how these rights are obtained.

In this article, we shall consider what the rights and responsibilities are that an unmarried father can have to their children in terms of the Children’s Act 38 of 2005 (“the Act”). Please refer to our previous article in the series on how these rights are obtained.

The following are the rights and what they consist of in terms of the Act:

1. Guardianship: - means a parent’s (or other person’s) capacity to legally administer (control) a child’s estate on his or her behalf and assist the child in performing legal acts. If the father has joint guardianship with the mother of the child his consent is required for the following acts:
   
   

   (a) the child's marriage;

   (b) the child's adoption;

   (c) the child's departure or removal from the Republic;

   (d) the child's application for a passport; and

   (e) the alienation or encumbrance of any immovable property of the child;

   
   

2. Custody: - means a parent’s (or other person’s) capacity to have the physical “possession” of a child, basically with which parent the child resides. This furthermore involves the care and support of the child and leading the child in his or her day to day life.
   
   

3. The duty of support: - the unmarried father has the duty to support his children regardless of whether he has access and visitation or guardianship as this is regulated separately by the Act. The refusal of access and visitation to the child in question does not absolve a father from this duty;
   
   

4. The right to maintain contact with the child: - even if the father does not have guardianship over the child he has the right to maintain contact with the child, also referred to as access and visitation. This right entails regular time that the father is entitled to spend with their child. This can consist of weekends and holidays, for example;
   
   

5. Other rights: - the above list is what is contained in the Act but is not the limit of the rights a father may have. For example, a father may seek the right to be actively involved in the decision making of the child’s schooling or religious upbringing. However, if the parties are unable to agree on this it will be for the Courts to make a ruling. This is done with the assistance of the Family Advocate. Should you require more information on the Family Advocate kindly refer to our article which considers this.

In our next article, we shall discuss the responsibility of the unmarried father in regards to maintenance for the minor child, specifically how maintenance is determined.