With its practitioners dressed in billowing black togas, piles of paperwork and archaic terms, the law can be scary. When it may impact your role as a single parent, it may even be terrifying.
But it does not have to be. Your desire to ensure the well-being of your child is at least one thing you may have in common with the law. The Children’s Act 38 of 2005 specifically prescribes that your child’s “best interest is of paramount importance” in all matters concerning his or her care, protection and well-being.
Safeguarding your child’s best interests is not always easy, but learning your legal ABCs will help. As it has an effect on your baby from his or her first breath, all parents should have at least a basic understanding of family law.
After your baby’s birth
Within 30 days of a baby’s birth, parents have to give notice to the Director of Home Affairs, who will issue a birth certificate. If you are married, also if you are in a same-sex marriage, notice is given under either or both parents’ surnames (or a double-barrel one).
If parents are unmarried a baby is registered under the mother ’s surname, unless both parents jointly request in writing that the father’s surname be used.
An unmarried father who acknowledges paternity needs to obtain the mother’s consent to register the baby under his name. Should a mother refuse or be unable to give the prerequisite consent, a father may apply to a competent court for a declaratory order in respect of his paternity.
The rights and duties of unmarried fathers
“One should be careful to attach too much weight to the absence of a biological father’s name on a birth certificate,” says Cape Town advocate Cathy McDonald. Being registered as a father on a birth certificate may furthermore only serve as a provisional indication of paternal rights and responsibilities in respect of a baby.
An unmarried father acquires parental rights and duties if he is:
- permanently living with the mother or
- consents to being identified as the father or
- contributes to the child’s maintenance for a reasonable period of time.
As Cathy warns, “The Children’s Act has made it increasingly difficult for mothers to keep fathers away from their children.”
The duty to care for your child
The Children’s Act provides extensive lists detailing the rights and responsibilities of parents in respect of dependent children. In addition to caring for your child, this includes maintaining contact, acting as a guardian and contributing to the maintenance of your child.
The Act has brought about an approach whereby the weight of parental rights and responsibilities are shared by both parents. “The tendency is towards more responsible parenthood,” explains Cathy. “Parents are encouraged to act like adults and to make decisions together.”
Unless a court awards sole guardianship to one parent, which usually happens only in exceptional circumstances, both parents are regarded as joint guardians of a child. This right entails making major decisions affecting a child while taking the child’s wishes into consideration (eg giving consent for a child to leave the country or to get married).
The Children’s Act, however, prescribes that even guardians are not permitted to make certain decisions for a child. These generally relate to specific religious, cultural or social practices (for example the marriage, genital circumcision or mutilation of young children).
Care and contact
When separated parents live close to one another, a court will often decide that the child should stay on a rotation basis with both parents respectively. Parents then share care duties. Should such an arrangement be impractical, however (for example when parents live too far apart or really struggle to get along), a court will direct that one parent be the primary caregiver of the child.
To make a decision, courts will thoroughly consider factors like the child’s age, sex and background; the child’s views and wishes as to where he or she wants to live if he or she is old enough; reports from psychologists and possibly a family advocate; and the parents’ respective circumstances.
The non-resident parent still has a right to reasonable contact with the child. When there may be some risk involved in granting contact with a child (for example when a parent has had a history of substance abuse), a court may order that contact only occurs under supervision.
Paying child maintenance is an absolute duty of both parents. The duty remains in force until a child turns 18 or becomes self-supporting. Being registered or not as a parent on a baby’s birth certificate, for example, does not detract from this duty.
Maintenance contributions towards a child’s expenses are calculated pro rata in accordance with the parents’ respective salaries and financial abilities. “You cannot draw blood from a stone,” says Roelof Steyn, an attorney and family law expert at Cluver Markotter Incorporated in Stellenbosch.
If one parent is therefore struggling financially, a court will not force him or her to contribute maintenance that cannot be afforded. A child's share of expenses is normally (although not always), half the amount of what the primary caregiver's expenses are.
Increasing and enforcing parental rights and duties
When a need arises to increase maintenance, a parent may approach a maintenance court in the area where the dependent child is residing. If parents can agree to increase maintenance before a maintenance officer, the matter can be finalised immediately. If, however, parents fail to agree, they
will have to wait for a trial date.
In order to safeguard your children’s interests, it is best to approach an attorney for assistance. If a parent neglects his or her duty to pay maintenance or to grant another parent contact with a child, an attorney may furthermore assist the other parent to lay a criminal charge at any police station, request a warrant for arrest or apply for a contempt of court imprisonment of the parent at fault.
A single parent’s responsibility
When consulting with single parents engaged in litigation processes, Cathy says she often wishes that they had known more about family law before taking inappropriate steps that later have to be resolved through costly and lengthy litigation.
“Be informed,” she urges. Although taking sole or large responsibility for your child’s interests is not always easy, with the necessary homework you can banish a lot of fears.
When disputes arise
Litigation (or time in court) is costly business. Where possible, therefore, try to settle any disputes that may arise with the other parent. Cape Town advocate Cathy McDonald advises that parents should try to co-operate as far as is reasonably possible. “When parents play games with litigation, it leads to major problems,” she says.
Should you be unable to reach an agreement with your child’s other parent, agree to at least see a facilitator or mediator who will guide and facilitate you toward an agreement. Although this option may also be expensive, it may cost you much less than litigation and will often lead to a much quicker outcome. Should you be unhappy with the outcome of a facilitation process, you are still able to apply to court for appropriate relief.
Professional facilitation bodies exist across South Africa. In the Western Cape, for instance, the Family Mediators’ Association of the Cape (www.famac.co.za, 021 801-6176) provides facilitation and mediation services. Their members consist of attorneys, advocates, psychologists and social workers who have experience in a variety of family law matters. The South African Association of Mediators (www.saam.org.za, 086 719 1811) can provide details of mediators and facilitators in Gauteng.
Be careful of legal advice you find on the Internet, as it can often be outdated or even false. A good starting point is reading applicable legislation such as the Children’s Act 38 of 2005, the Maintenance Act 99 of 1998 (download here) and Domestic Violence Act 116 of 1998, as these may help you handle situations that often arise during single parenthood.
In making difficult legal decisions or taking legal steps, it is important to make an appointment with an attorney who has sufficient experience in family law. You can contact the Law Society in the province where you live to obtain contact details of such specialist attorneys.
As Cape Town advocate Cathy McDonald notes, however, you should remember to trust your instincts and to be informed. In this way you can save money and time and ensure that your child’s best interests are indeed catered for.