Our expert says:
Family law expert
Hi Trying Dad,
My sympathy is with you. In terms of section 1 of the Children’s Act 38 of 2005 the right of contact, also known as “access”, is defined in section 1(1) of the Act and means:
i. maintaining a personal relationship with the child; and
ii. if the child lives with someone else –
a. communication on a regular basis with the child in person including visiting the child or being visited by the child; or
b. communicating on a regular basis with the child in any other manner including through the post or by telephone or any other form of electronic communication.
Section 18 of the Act provides that a person may have either full or specific parental rights and responsibilities in respect of a child. Furthermore, that the parental rights and responsibilities a person may have in respect of the child include the responsibility and the right to maintain contact with the child.
In terms of section 21 an unmarried father has full parental rights and responsibilities in respect of a child born out of wedlock if -
i. at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
ii. he, regardless of whether he has lived or is living with the mother,
a. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
b. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
c. contributes or has attempted to contribute in good faith to contribute towards expenses in connection with the maintenance to the child for a reasonable period.
In essence section 21 basically means that an unmarried father has the right of contact to his child if the conditions I mentioned above are met.
If the mother and unmarried father dispute whether or not the above criterion has been fulfilled, the matter has to be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. If either the mother or the unmarried father are dissatisfied with the outcome of the mediation, it can be referred to court for review.
If the unmarried father does not have a right of contact in terms of section 21 or in terms of a court order, he may still be able to acquire a right of contact in terms of an agreement with the mother. The agreement must be in the prescribed format and contain the prescribed particulars. Also, the agreement must be registered with the family advocate or made an order of the High Court or the children's court on application by a party to the agreement.
Any Magistrate’s court is a children’s court and will have jurisdiction to hear the matter if the child involved is ordinarily a resident within the area of the court.
The family advocate or court will have to be satisfied that the agreement is in the best interests of the child. This requirement is in line with the Constitution. When giving effect to the best interests of the child ], a court will consider:
• the nature of the relationship between the child and the parent;
• the attitude of the parent towards the child and
• towards the exercise of parental responsibilities and rights in respect of the child;
• the capacity of the parent to provide for the needs of the child;
• the likely effect on the child of any separation from either parent; and
• the need of a child to maintain a connection with his or her family.
The agreement will be of no force and effect if it is not duly registered with the family advocate or made an order of the High court or children’s court.
If I was in your shoes, I will definately enforce my rights, it is absolutely unacceptable that you as the natural father is denied the right to be part of your child's life. I agree with G-Dad, you will have to approach court to enforce your rights.
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