Parental Rights

Learn about the rights that parents have in regard to their children; including unmarried fathers, guardianship, artificial insemination, surrogacy and adoption.

General

The rights that parents have in regard to their children stem primarily from the duties they have towards their children. The Bill of Rights state that every child has the right to basic nutrition, shelter, health care and social services, as well as the right to be protected from maltreatment, negligence, abuse and/or degradation. In order to give effect to these rights, the parents of children have various duties imposed on them, which, in turn, have correlative rights.
 
The Children’s Act states that a parent has the following rights and responsibilities towards their child:
 
1.     To care for a child;
2.     To keep contact with a child;
3.     To act as guardian of a child; and
4.     To contribute to the maintenance of a child.
 
The parents of a child have equal rights and responsibilities towards that child when they are living together. However, if the parents do not live together, specific rights and responsibilities may be allocated to one parent instead of the other, either by mutual agreement between the parents or an order of Court.
 
When a child is born during a marriage, the husband of the child's mother is automatically presumed to be the father of that child. If the child's parents were are not married at the time of its birth or before, the mother alone has a legal right and duty to care for the child, unless a Court orders otherwise. This means that unmarried fathers of children have no automatic legal rights to care for their children or to visit them.
 
Note: A parent or any other person who has an interest in the well-being of a child can apply to the Children’s Court, High Court or the Divorce Court for an order to grant them parental rights and responsibilities.
 
Care:
 
Care, also known as custody, involves a duty of making sure that a child has a suitable place to live that encourages their health and development. The parent that the child permanently lives with is called the primary caregiver, and that parent has the right to care for that child and supervise their daily life.
 
Contact:
 
A parent who is not living with their child has the right to maintain a personal relationship with their child. This relationship can be maintained by allowing the parent to see, spend time (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with the child. The primary caregiver has a responsibility to allow this parent to keep in contact with the child and to inform them of any changes in the child’s residential address. Failure to comply with this requirement can amount to a criminal offence.
 
Guardianship:
 
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, for example like a house owned by a child;
·      Act for the child when doing anything official, for example like entering into a contract or going to Court; and
·      Make decisions about whether a child can get married, be adopted, leave South Africa or get a passport.
 
Note: If a child has more than one guardian, all of the guardians’ consent is required before one of the above decisions or actions can be taken by a child.
 
Maintenance:
 
Both parents have the responsibility to contribute to the maintenance of the child. A child’s reasonable needs to have a proper upbringing must be considered when determining how much maintenance a child is entitled to. In deciding this, consideration must be had for the costs of food, clothing, accommodation, medical care and education of the child. The responsibility to maintain a child does not end when a child reaches a certain age, for example when they reach 18 years old. This responsibility continues until the child is able to look after themselves independently.
 
Note: For more information see page on Child Maintenance and Rights

Unmarried Fathers

When a biological father is not married to the mother of the child, he does not have parental responsibilities and rights but he must still pay for half of the maintenance for his child. If unmarried fathers want to have a relationship with their child, they can claim some rights that married fathers have. In order to obtain these rights, a biological, but unmarried, father must prove one of the following requirements:
 
·      That he was living with the child’s mother in a serious, long term relationship at the time of the child’s birth;
·      That he wants to claim paternity of the child;
·      That he has paid customary law damages, if applicable;
·      That he contributes to the child’s upbringing; or
·       That he contributes or tries to contribute to the maintenance of the child.
 
Sometimes a father will not be allowed to claim that parental rights regardless of proving one of the above requirements. These instances are where the child was conceived because of:
 
·      A rape of or incest with the mother of the child; or
·      The father is biologically related to a child because of artificial fertilisation.
 
Biological fathers can become primary caregivers of their child if the child's mother is declared by a Court unfit to care for the children. An example of this would be where the mother is an alcoholic or substance abuser.
 

Guardianship

Any person who is interested in the well-being, care and development of a child may go to the High Court, a Divorce Court, or the Children’s Court to ask for permission to be part of a child’s life as their guardian. When deciding whether or not to appoint someone as a guardian of a child, a Court investigate numerous aspects of that person's life and their relationship with the child. Any decision to grant or deny a person becoming a child's guardian will always be made in the best interests of the child.
 
There are two ways in which a person can become a child’s guardian, if they are not the parent of the child:
 
  1. By a decision of the High Court; or
  2. If in the child's parent(s) Will, it identifies someone and that person is deemed to be a fit and proper person.
 
Note: Natural guardians have a legal duty to support their children and must use their own money to support the children. Legal guardians have no such duty. They do not have to use their own money to support a child in their care.

Artificial Insemination

When someone or a couple decides to have a child through artificial insemination, that child is seen as being the biological child to that person or to that couple.
 
Note:  The child or the parent(s) of the child can request access to medical record about that child's genetic parents even though the identity of the child's genetic parents can or ought to be withheld.

Surrogacy

A surrogate mother is someone who carries a child in her womb for another person. The surrogate mother is not understood or thought of as the mother of the chid. Therefore, when the baby is born the surrogate mother leaves her womb, the surrogate mother no longer has any claims to that child.

Adoption

When a child is adopted it means that the Court agrees to permanently place the child in the custody of people that can take care of the child. A child that is adopted is regarded as the natural child of the adoptive parent(s). Therefore, the adoptive parent(s) of a child becomes it’s legal and natural guardians. The purpose of adoption is to protect and nurture children by giving them a safe and healthy place to live amongst a loving family.
 
Note: The Court will only allow a child to be adopted if the adoption is in the best interests of the child. A social worker must make sure that the child can be adopted and that the adoption will be in the child’s best interests.