Who gets parental rights and responsibilities for the child? | Legal Articles


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Who gets parental rights and responsibilities for the child?

Since the Children’s Act 38 of 2005 came into effect, the terminology used regarding children has changed. The parental rights and responsibilities of parents and other parties have also been clearly defined. 

Parental rights explained by our divorce attorneys Johannesburg

Biological Parents

The acquisition of these rights and responsibilities, according to the Children’s Act, biological parents are automatically afforded these rights, however, the rules are different for biological mothers, married fathers and unmarried fathers. 

If the children were conceived as a result of artificial insemination then parental rights and responsibilities are also automatically assigned. 

Individuals who hold full parental rights and responsibilities have the right and responsibility to care for a child, maintain contact with the child, act as the guardian of the child and contribute to the maintenance of the child. 

It is possible for more than one person to have parental rights and responsibilities, even if the person is not a biological relation of the child. 

These individuals are referred to as co-holders, and like a holder of parental rights and responsibilities, they always need to act with the children’s best interests in mind, as well as, take the wishes of the children into account. 

Child Care vs Child Custody

In the Children’s Act , the term ‘custody’ was replaced with ‘care’. It also states that such care includes providing a suitable place to live as well as providing living conditions which contribute to the child’s health, well-being and personal development. 

This also includes protecting the child from physical, emotional or moral harm in anyway and protecting the rights of the child. 

In caring for the child,  you are also responsible for guiding, directing and securing the child’s education regarding religion and cultural practices appropriate to the child’s age and guiding the behaviour of the child. 

Should the child have any special needs, then these are to be accomodated. Ultimately, concerning all matters, the child’s best interest should be upheld. 

Regarding the acquisition of parental responsibilities and rights, there are a few different types which should be taken into account. 

Firstly, biological mothers are automatically granted full parental responsibilities and rights for her child whether she is married or not. This is because she gave birth to the child. 

The Responsibilities & Rights of Biological Fathers

A biological father is granted full parental responsibilities and rights for the child if he is married to the child’s mother or was married at the time of conception or birth or any time between this period. 

These responsibilities and rights are also granted if he is or was married to the mother anytime after the child’s birth.

If the biological father is not married to the biological mother or was not married to her at sometime during the conception or birth of the child then full parental rights and responsibilities will not be automatically granted to him. 

However, these will be granted if he was living in a life partnership with the biological mother at the time of the child’s birth. 

Also if he consents to be identified as the father of the child or applies for an amendment to be effected on the child’s birth certificate so that he can be registered as the biological father of the child in terms of the Births and Deaths Registration Act or paying for damages in terms of customary law.

By contributing or attempting to contribute to the upbringing of the child within a reasonable period, and paying or attempting to pay maintenance for the child will allow for these rights and responsibilities to be granted. 

Artificial Insemmination

If the baby was conceived through artificial insemination then there are three factors to consider. 

If a married woman is impregnated with the gametes of her husband or that of a third party donor with the consent of her spouse, the child is regarded as having been born of married parents. As such, full parental responsibilities and rights will be automatically granted to both mother and her spouse. 

However if a single woman is impregnated through artificial insemination, then the child is hers and thus full rights and responsibilities are granted to her alone. 

All parties who hold full parental responsibilities and rights are guardians of children. They can in turn appoint a any number of third party individuals to act as guardians of the child. 

These appointments need to be expressed in the will of the biological parent who is the sole guardian of the child and they will come into effect upon the death of the parent. 

If both parents are holders of parental rights and responsibilities, then upon the death of either parent the surviving parent becomes the sole guardian. 

Should the parents be divorced yet retain join parental rights, then the parents will be co-guardians. 

Like previously mentioned, if both parents have parental rights and responsibilities, then upon death the surviving spouse will become the sole guardian. 

Third Party Care Giver

If the deceased spouse appointed in their will to have a third party act as caregiver and guardian of the child, then the ex-spouse will need to agree to giving up their parental rights or to share such rights with the other appointed guardian. 

In such matters, the best interests of the child will be considered when the court is making a decision. 

Should the sole surviving spouse die, then the third party individual or persons who were appointed as guardians will be granted full parental rights and responsibilities in relation to the child. 

In cases where a dispute arises between the biological parents over the rights and responsibilities of the father, then it needs to resolved by making use of a neutral party such as a family advocate, social worker or any other suitably qualified person. 

This neutral party will help both parents to reach a settlement in order to accommodate both of their needs, as well as, the needs of the child. 

Van Deventer & Van Deventer Incorporated - Family Attorneys Cape Town and Johannesburg

Contact us for expert legal advice.


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