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Question
Posted by: R | 2010/03/03

parental rights

What rights do i have as a father? I do pay child maintance.But having problems with the mother of my child. Sometimes when i want to see my child she will refuse with no reason other than being spitefull. Can i get a court order for arrangements as to when i can see my daughter and how do i go about?

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Our expert says:
Expert ImageFamily law expert

In terms of the Children’s Act unmarried fathers can acquire parental rights and responsibilities automatically (without needing to go to court) but only in the event that the father complies with provisions set out in section 21. In your case you contribute to maintenance, so you comply with the provisions. The section came into operation on 1 July 2007. Previously, it was not possible for unmarried fathers to acquire automatic rights in respect of a child in terms of the Natural Fathers of Children born out of Wedlock Act.

If the mother disputes that the requirements have been satisfied then the matter must be referred to one of the following service providers for mediation, i.e, the family advocate, social worker, social service professional or other suitably qualified person. You cannot approach the court before such mediation has taken place. When mediation fails or is not possible then one of the parties can approach the High Court for an appropriate order.

Where no dispute exists that you comply with the section 21 then you and the mother will be co-holders of parental rights and responsibilities. In such a case you will be able to exercise your parental rights and responsibilities if you and the mother draw up a parenting plan in terms of section 33 setting out how both would exercise the responsibilities and rights in respect of the minor. However, section 33 is also not yet in operation.

Once the Act is fully operational, section 33 will be of assistance. Section 33 allows for persons who both have parental responsibilities and rights (eg mother and unmarried father who qualifies in terms of section 21) to enter in to an agreement which sets out in detail what the arrangements will be for the child’s upbringing.

At the moment, however, section 33 has not yet come into operation. In order to protect your child’s rights, it is important that you and the mother reach agreement on how your responsibilities and rights should be exercised. If the child is of sufficient age and maturity, he may also be involved in making such agreements.

If no agreement can be reached, and for the time being pending the full working of the Children's Act, the unmarried father will have to seek a court order. At the moment the only recourse you will have is to the High Court. Once the new Children’s Act is fully operational, you will have a number of choices, you will be able to bring applications for care or contact in the High Court or Children’s Court(applications for guardianship will remain the sole jurisdiction of the High Court).

bertus@divorceattorney.co.za

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

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Our users say:
Posted by: Family law expert | 2010/03/05

In terms of the Children’s Act unmarried fathers can acquire parental rights and responsibilities automatically (without needing to go to court) but only in the event that the father complies with provisions set out in section 21. In your case you contribute to maintenance, so you comply with the provisions. The section came into operation on 1 July 2007. Previously, it was not possible for unmarried fathers to acquire automatic rights in respect of a child in terms of the Natural Fathers of Children born out of Wedlock Act.

If the mother disputes that the requirements have been satisfied then the matter must be referred to one of the following service providers for mediation, i.e, the family advocate, social worker, social service professional or other suitably qualified person. You cannot approach the court before such mediation has taken place. When mediation fails or is not possible then one of the parties can approach the High Court for an appropriate order.

Where no dispute exists that you comply with the section 21 then you and the mother will be co-holders of parental rights and responsibilities. In such a case you will be able to exercise your parental rights and responsibilities if you and the mother draw up a parenting plan in terms of section 33 setting out how both would exercise the responsibilities and rights in respect of the minor. However, section 33 is also not yet in operation.

Once the Act is fully operational, section 33 will be of assistance. Section 33 allows for persons who both have parental responsibilities and rights (eg mother and unmarried father who qualifies in terms of section 21) to enter in to an agreement which sets out in detail what the arrangements will be for the child’s upbringing.

At the moment, however, section 33 has not yet come into operation. In order to protect your child’s rights, it is important that you and the mother reach agreement on how your responsibilities and rights should be exercised. If the child is of sufficient age and maturity, he may also be involved in making such agreements.

If no agreement can be reached, and for the time being pending the full working of the Children's Act, the unmarried father will have to seek a court order. At the moment the only recourse you will have is to the High Court. Once the new Children’s Act is fully operational, you will have a number of choices, you will be able to bring applications for care or contact in the High Court or Children’s Court(applications for guardianship will remain the sole jurisdiction of the High Court).

bertus@divorceattorney.co.za

Reply to Family law expert
Posted by: Anon | 2010/03/04

Hi R

You must be careful in the interim until you can get a court order to define your access. Although you wife has no legal rights to deny you access to your child. Many spiteful women abuse the domestic violence act in order to gain leverage and manipulte the situation. Your ex might just go to the court and get an interim protection order issued agaist you based on false accusations (like many women do during divorce). This interim protection order is one of the worst hells as it is issued without you being present and takes months until you can go to court to defend it.

How does your wife deny you access, does she treathen you or become verbally abusive in anyway when you go to see your child. If she does than I suggest that you go to the local court and get an interim protection order issued against her preventing her for treathening you.

Reply to Anon
Posted by: G-Dad | 2010/03/03

She does not have the right to deny you access, but she can dispute your right to access without a court order, unfortunately that is to only route you can take, get a court order to set out your access in detail and your rights as a father, if the child is small and it is recommended supervised access then have clauses build in that when the child reach the age of 3 (in some cases school going age) that you have removal access every second weekend from Friday at xxHxx to Sunday at xxHxx time, and 1 short and 1 long holiday which include festive and easter holidays alternating ect.

The more detail the better, also allow phone calls and letters to the child ect.

Reply to G-Dad
Posted by: R | 2010/03/03

No there is no existing court order so she has the right to deny me access to my child? It''s just so frustrating. But my first step is probably to get a court order.

Reply to R
Posted by: G-Dad | 2010/03/03

Firstly is there an existing court order like a divorce order stating your access?

If there is no court order she can dispute your rights to access, it is best to get such an order then, if there is an existing court order maybe your access rights has not been clearly defined, in such a case get the order changed by the courts to spell out exactly what your rights is, if it is spelled out then you can get the courts to force your access on her, if she still refuse then lay a charge of contempt against her at the courts. Some men had good success with this, for others this is a never ending story and hundreds of thousands rands later they still have limited or no access, it all depends on the judge and the merit of your case and a bit of luck.

Reply to G-Dad
Posted by: GT | 2010/03/03

HI
For what she is doing it is called
Suffers from Parental Alienation Syndrome (PAS)
Suffers from Hostile Aggressive Parenting (HAP)
You have to report her to the child advocates office with all the facts.
If it is a court order of when you can see your child go to the local police and ask for assistance, You might be lucky but insist.
Take notes, times ,dates ,and her reason for not allowing
You have equal rights and responsibility to your children.
If you are withheld from seeing your children she can receive a heavy fine or up to one year in jail.

Reply to GT

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