Fathers Rights Article 4: Options when access and visitation rights are refused
In our previous article, we briefly discussed the responsibility of unmarried fathers in regards to maintenance for minor children, specifically how maintenance is determined.
In this short article, we shall consider options available to unmarried fathers when access and visitation rights are refused.
It may happen that the biological mother and unmarried father may be unable to reach an agreement on access and visitation to the children of the unmarried father, referred to as the parenting plan. In this instance, the unmarried father may have recourse to the Children’s Court in terms of the Children’s Act 38 of 2005 (“the Act”).
In terms of Section 45(1)(b) of the Act the Children’s Court may adjudicate any matter in relation to “the care of, or contact with, a child”. The Children’s Court, therefore, has jurisdiction to determine the issue of access and visitation. Please note however that this must not be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children, meaning the same request can be made to the High Court. The Children’s Court can be located, in most instances, in the Magistrate’s Court in the relevant area of jurisdiction, that being where the child resides.
The Children’s Court has the power to refer the matter, depending on the circumstances of the case, for further investigation by a social worker. The social worker will be required to compile a report for the Children’s Court to take into account when making its order.
While this may take some time, to compile the report, the Children’s Court may issue an interim (temporary) order for access and visitation pending the outcome of the hearing.
***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney
In our next article, we shall discuss the recognition of paternity of the unmarried father and how the same is obtained.