My son's mother has taken my child and is now denying my paternity. What can I do?

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Section 21 of the Children's Act 38 of 2005 is quite clear regarding the parental rights and responsibilities of unmarried fathers.
Section 21 of the Children's Act 38 of 2005 is quite clear regarding the parental rights and responsibilities of unmarried fathers.

Parenting is tough as it is, but when paternity comes into question, it can make even the strongest bonds wither. 

Dad Bongani wrote to Parent24, explaining how he was staying with his girlfriend when they had a baby boy last year. The child, who is now two years old, has now suddenly been taken from him, with the mom claiming the boy is not his. He doesn't know how to respond and how to ensure he sees his child.

He writes:   

"Since the child was born, I was taking care of him. When the lockdown started, I was babysitting because I was not working. 

Even now his mom will go to work and I'll take care of the baby. She never makes time for us, even if she is not going to work she will always have a place to go or something, then I will have to take care of the baby. 

So now she took the baby away from me just because we have our differences, and she says we have to break up.

Okay, I did respect her decision.

But every day I call her to ask to see my son she will not answer my calls, sometimes she will tell me that he is asleep. 

So it happened that my sister's friend came and told my family that my girlfriend came to his brother and told him that he is the father, and not me. They sent him to take photos of the child. 

And now I am wondering why they do not allow me to see my son. Please help me. I'm truly hurt, I can't even think for myself." 

We reached out to the legal professionals at Adams & Adams, a local legal firm with a team that specialises in family law, for some insight and advice.

They first pointed out that Section 21 of the Children's Act 38 of 2005 ("the Act") is quite clear regarding the parental rights and responsibilities of unmarried fathers. 

Full parental rights and responsibilities are awarded to unmarried fathers under the following circumstances in terms of Section 21:

  1. if at the time of the child's birth he is living with the mother in a permanent life-partnership; or
  2. if he, regardless of whether he has lived or is living with the mother- 

(i) 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; 

(ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and 

(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. 

Bongani would therefore, in terms of Section 21(1)(a), be entitled to full parental rights and responsibilities in respect of the child since he was living with the child's mother at the time of the child's birth in a permanent life partnership. 

Adams & Adams adds that he has furthermore, as required in Section 21(1)(b)(i) – (iii), identified himself as the child's father and contributed to the child's upbringing for a reasonable period while caring for the child. 

These rights and responsibilities include care, contact, guardianship and the provision of maintenance for the child.

"In order to resolve the issue that Bongani faces where he is being denied contact with his child, one should first try to take an approach conducive to conciliation and problem-solving," their representative told Parent24. 

This would mean reaching an agreement or parenting plan regulating each parent's rights and responsibilities and setting out certain terms for Bongani to have contact with his child. 

"In the event of a failure in the aforementioned approach, Bongani would have to approach the Children's Court in the area where the child resides for an order allowing him contact with his child," Adams & Adams notes. 

If there is a dispute regarding paternity, and Bongani's girlfriend is, among other things, not willing to consent to paternity testing or cannot be located, Section 26(1)(b) of the act states that a person who is not married to the mother of a child and who is or claims to be the biological father of the child may apply to a court for an order confirming his paternity of the child.

However, there is a presumption of paternity in respect of a child born out of wedlock if it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived. This is in the absence of evidence to the contrary, which raises a reasonable doubt.

Adams & Adams notes that, lastly, it is important to remember that the facts and circumstances of each matter are unique, and the appropriate approach to take in each matter will depend thereon.

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