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03 Jun 2011

ENQUIRY
I recently separated from the father of my child and we had been together on and off for 6 years and the previous girlfriend that he had used to swear and threaten me and now the recent one sends me sms''s to say that the father says that he regrets having a child with me,he does not support the child at all and never has never supported the child and everytime i would call when the child was sick or needed something he would give the phone to the girlfriends to swear at me,i wanted to know if i have the right to take my child far away from him and not let him see him
Answer 382 views
Expert
Family law expert
family law expert

01 Jan 0001

In terms of the Children’s Act an unmarried father can acquire parental rights and responsibilities automatically (without needing to go to court) if he complies with conditions in section 21.

In the light of the Children’s Act an unmarried father qualify automatically for parental responsibilities and rights.In order for an unmarried father to automatically acquire parental rights and responsibilities under section 21 the following requirements must be met:
1. He must be or have been living in a permanent life partnership with the child’s mother at the time the child is born; or
2. If he is not living or has never lived with the mother in a life partnership then in order for him to acquire automatic parental rights and responsibilities;
(i) he must consent to being identified as the child’s father or apply to be so identified or he must pay damages in terms of customary law; and
(ii) he must contribute or must have attempted to contribute to the child’s upbringing for a reasonable period; and
(iii) he must contribute or must have attempted to contribute to expenses in connection with the maintenance of the child for a reasonable period.

Consequences of compliance or non-compliance with conditions in section 21

If the child’s mother disputes allegations that the requirements have been satisfied by the father then the matter must be referred to one of the following service providers for mediation, namely, the family advocate, social worker, social service professional or other suitably qualified person. The courts cannot be approached before such mediation has taken place. If mediation fails or is not possible then one of the parties can approach the High Court for an appropriate order.

If there is no dispute that the father complies with the conditions set out in section 21 then he and the mother will be co-holders of parental rights and responsibilities. In such a case the father would be able to exercise his parental rights and responsibilities sufficiently if he and the mother draw up a parenting plan in terms of section 33 setting out how they would exercise their respective responsibilities and rights in respect of the child.

I suggest that you get a maintenance order in place so that he pays monthly maintenance.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
A:1st Floor, 56 Shortmarket Street, Cape Town, 8000
O: +27 (0) 21 422 1323
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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 examination, 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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