Sin­gle par­ent­hood: Your le­gal ABCS

Be­ing a sin­gle par­ent can be a lot less stress­ful when you know your rights, says Anri van der Spuy

Your Baby & Toddler - - News -

WITH ITS PRAC­TI­TION­ERS dressed in bil­low­ing black to­gas, its piles of pa­per­work and its 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 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 in­ter­est 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.


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 pre­req­ui­site con­sent, a fa­ther may ap­ply to a com­pe­tent court for a declara­tory or­der in re­spect of his pa­ter­nity.


“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. And Cathy warns, “The Chil­dren’s Act has made it in­creas­ingly dif­fi­cult for moth­ers to keep fa­thers away from their chil­dren.”


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 a sole guardian­ship to one par­ent, which usu­ally hap­pens only in ex­cep­tional cir­cum­stances, both par­ents are re­garded as joint guardians. This right en­tails mak­ing ma­jor de­ci­sions af­fect­ing a child while tak­ing the child’s wishes into con­sid­er­a­tion (for ex­am­ple giv­ing con­sent for a child to leave the coun­try). 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).


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 ar­range­ments 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 view 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 does not ex­tract 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.


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, they 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.


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. 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.” YB


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