As stated in the Children’s Act 38 of 2005, parental responsibility is defined as the responsibility to care for the child, act as guardian, maintain contact with the child and contribute to their maintenance.
Where there is a separation or divorce, the Children’s Act provides that parents can enter into a written agreement called a Parenting Plan which documents their respective parental responsibilities and rights in respect of the child. This is drafted with input by both parents and, in certain circumstances, a third mediating party. The Parenting Plan must serve ‘the best interests of the child’ principle, be in a prescribed form and deal with issues such as: who the child will primarily live with, maintenance, contact between the child and the non-resident parent and schooling and religious upbringing.
It is important to know that a Parenting Plan is not a permanent document that cannot be changed. The parties will need to revisit the agreement from time-to-time given changing circumstances such as, the child growing up or having different needs. Parenting Plans should also contain a section on dispute resolution and parents should first make every effort to resolve their disputes between themselves before resorting to litigation.
A successful Parenting Plan is one where both parents are realistic about arrangements, having understood the process and importance of effective communication and always putting the best interests of the child first.
In our current society there are many more couples who have children outside of wedlock; either choosing to cohabit or continue with their separate lives. The consequences of these relationships ending are just as serious as if they were going through a divorce. The critical issues will be the maintenance due by the father and the father’s right of contact with his child.
The Children’s Act further sets out that a person may have full or specific parental responsibilities and rights. Full parental responsibilities and rights means that a person may be entitled to all the rights set out in the Act. Specific parental responsibilities and rights means that a person may only have a specific right in terms of the Act. The biological mother, whether married or not, has full parental responsibilities and rights in respect of her child by virtue of the biological tie.
An unmarried biological father will only have automatic parental rights and responsibilities in the following instances: he was living in a life partnership with the mother at the time of the child’s birth; he consents to being identified as the father of the child (on the birth certificate) and is registered as such according to the Births and Deaths Registration Act; he contributes in good faith to the upbringing of the child within a reasonable period and has paid (or attempted to pay) maintenance.
Should a Parenting Plan be created, parents need to commit to the process and remember it is about the best interests of the child. The assistance of a third party, such as a Family Law Attorney, can assist in drafting the agreement.
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