Written by Denisha Padachey

30 APRIL 2023

Due to various circumstances, children are being born to unmarried parents across the globe. Even though some of these couples may cohabitate, many of these parents lead entirely separate lives while aiming to co-parent their child(ren) successfully. Knowing your parental rights and responsibilities and the laws that govern them is essential for any parent who aims to co-parent their children effectively.

This article explores the rights and responsibilities of unmarried parents in light of Children’s Act 35 of 2005, as amended (hereinafter referred to as the “Children’s Act”) and highlights the importance of effective co-parenting between unmarried parents.

The article also explores the option of drafting and implementing a parental plan with the help of a mediator and the option of making the parental plan enforceable and binding as an order of the court.

What Are Parental Responsibilities and Rights?

Section 18 of the Children’s Act explores the concept of parental rights and responsibilities. Section 18 (2) confirms that parental rights and responsibilities include “to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the maintenance of the child”.

Which laws govern parental responsibilities and rights of unmarried parents?

Sections 19, 20 and 21 of the Children’s Act regulate the parental responsibilities and rights of mothers and fathers, whether married or unmarried. Where unmarried parents are concerned, it is crucial to ascertain each party’s parental responsibilities and rights in line with sections 19 and 21 of the Children’s Act.

Section 19 of the Children’s Act has always confirmed that all biological mothers, whether married or unmarried, will have full parental rights and responsibilities regarding their child. Contrary to this, unmarried fathers did not always have full parental rights and responsibilities. They had to apply to a Court to obtain parental responsibilities and rights over their child in the past.

How can unmarried fathers obtain their parental rights and responsibilities?

Fortunately, Section 21 of the Children’s Act stipulates that where mutual agreement cannot be reached, unmarried fathers can acquire full parental responsibilities and rights regarding their child/children in the following two instances:

  • Firstly, where an unmarried father, at the time of the child’s birth, lived with the mother in a permanent life partnership, the unmarried father can acquire full parental responsibilities and rights in respect of the minor child/children.
  • Secondly, where an unmarried father did not live with the child(ren)’s biological mother at the time of the child’s birth, but he consents to be identified as the father of the child, to contribute, or attempt to contribute in good faith toward the child’s upbringing for a reasonable period and contribute, or attempt to contribute financially toward the child’s maintenance for a reasonable period.

How can unmarried parents regulate their parental responsibilities and rights?

Where unmarried parents have mutually agreed to co-parent their child/children, it is prevalent that they consider entering into a parental plan.

What is a parental plan?

A parental plan is a document which has been introduced as a co-parenting instrument to facilitate effective co-parenting by regulating each parent’s parental responsibilities and rights in respect of their child(ren). The Children’s Act does not preclude unmarried parents from entering into a valid and binding parental plan as this cannot be deemed in the best interests of a minor child(ren).

Why is it necessary to make the parental plan an order of court?

Even though parents may opt to draft a parental plan without getting the court involved, making your parental plan an Order of the Court ensures that the parental rights and responsibilities of one parent cannot be hindered by the other parent. Furthermore, suppose either unmarried parent prevents the other parent from exercising their parental rights and responsibilities in terms of the parental plan; the applicable parent will have alternative recourse to enforce the court order.

How can I make a parental plan an order of the court?

To make a parental plan an Order of the Court, the parental plan must:

  • adhere to section 22 as well as sections 33-35 of the Children’s Act;
  • serve in the best interests of the minor child(ren);
  • be drafted with the assistance of an impartial third party, which can include a family law attorney, a family advocate, a social worker, or a clinical psychologist; and
  • be signed by both parents once consensus is reached;

What recourse is available if a valid and binding parental plan does not work?

If a valid and binding parental plan has been entered into, and an unmarried parent cannot exercise their parental responsibilities and rights, they can either attempt to mediate the situation by utilising a competent mediator or a competent Court can be approached for relief.

What can I do if I don’t have a parental plan in place?

Where parties cannot enter into a valid and binding parental plan and an unmarried parent cannot obtain or assert their parental responsibilities and rights, the parent can approach a competent Court for relief.

It should be noted that the aforementioned tends to occur more in instances of unmarried fathers who are either attempting to obtain or assert their parental responsibilities and rights. Where unmarried fathers are attempting to obtain care and contact rights, a competent Children’s Court can be approached; however, where an application for guardianship is involved, only a competent High Court can be approached as they are the only court that can award guardianship rights over a minor child.

Are your parental rights and responsibilities being taken away from you? Contact one of Burger Huyser Attorneys’  family law specialists  for assistance with the drafting of a parental plan, assistance in ensuring that a parental plan is made an Order of Court or assistance in applying to a competent Court to obtain or assert your parental responsibilities and rights.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE