Child Custody Outside Marriage
In today’s day and age we have all been confronted with the fact that no matter what the reasons or circumstances, there are children who are born outside of marriage. The parents eventual choice is either to stay apart, each pursuing his or her own separate life or they might decide to cohabit. Whichever choice they decide on, the main issue would be centered around the support from the father, maintenance payments as well as his right of contact with the child.
The maternal mother, depending on her experience and relationship with the father, and concentrating on the best interests of the child, might limit or deny the father to visit the child. The child is, unfortunately, the loser in this scenario as the ideal for the child’s emotional and physical development is to be brought up by both parents.
The Children’s Act of South Africa (38 of 2005) focuses on the child’s rights and not on parental authority and rights. When matters concerning the well-being of the child, care and protection, the child’s rights should be applied and taken into account before anything else.
The Rights and Responsibilities of the Parents
Parents should care and keep the child safe, stay in contact and maintain the child. The Act also sets out that a parent may have full or specific rights. A child needs a parent or guardian to represent him or her legally, safeguard and maintain the child’s property as well as act in matters that require consent.
The biological mother, because she gave birth to the child, has full parental rights and responsibility towards the child. The Act recognises that the biological father has automatic parental rights and responsibilities if he was in a life partnership with the biological mother at the time of birth, if he consents to be identified as the biological father on the birth certificate or if he has contributed to the maintenance of the child.
Disputes arising from Custody Outside of Marriage
Mediation is the route to be taken in respect of disputes between biological parents outside of marriage. In the case of the mediation process failing, the Court should be approached. The Court might then refer the matter to a family lawyer for investigation. Whatever the outcome of this process, the biological father may apply to be given certain parental responsibilities and rights.
Please note that the Children’s Act of South Africa (38 of 2005) is much more comprehensive than the above-mentioned discussion and only a few matters have been highlighted here.
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