Children have a right to both parents

By admin
10 January 2014

Many women dream of meeting prince charming and having a dream wedding even after they’ve had children. Not marrying the father of your children doesn't mean you won’t get married at all.

Being a single mother is a reality of millions of South African women, whether the father is in the children’s lives or not, many women are the primary care giver of their children .What happens when mom finally finds prince charming and he sweeps her off her feet? Do the children become a part of her new family or should they be left behind?

According to Nicole Stevens and Hazel Sgulugulu, family law experts at Smith, Tabata, Buchanan, Boyes (STBB). A mother has every legal right to live with her children, whether she is married to their father or marrying another man.

“The biological father cannot prevent a mother from marriage and more importantly cannot prevent the children from living with their mother and a new husband especially if the mother is the primary caregiver of the children. In this regard, the interests of the children will always prevail in family law matters,” they say.

Although practically the mother’s husband would be a guardian to the children and interact with them more regularly he would have to make an application to the courts to adopt them legally either by agreement to take over parental responsibility from the biological father or applying to share responsibility and parental rights with the biological parents .

Many men think that just because they’ve fathered a child they have parental rights. Family law experts at STBB say the biological father only gets automatic parental rights if he is married to the mother during her pregnancy or when she gives birth.

A unmarried father only gains legal parental rights and responsibilities if:

  • at the time of the birth he is living with the mother in a permanent life partnership;
  • he consents as the child's biological father;
  • pays damages in terms of Customary Law;
  • contributes towards the maintenance and upbringing of the child

Nicole and Hazel say once a father gets these parental rights, they do not change, whether the mother marries or not the biological father will be considered the child’s parent legally unless he forfeits his rights in a legal adoption or a court finds that being in his care is not in the best interest of the child.