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WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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What rights does the father have when the couple are not married,

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What rights does the father have when the couple are not married, and the baby is not yet born. My daughter is pregnant and she is 18. the father is threatening her with custody battles etc, what rights does he have over the child.

Good day.

His rights is set out in the Children's Act, sections 18 and 21:

18. Parental responsibilities and rights.—(1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—
(a)to care for the child;
(b)to maintain contact with the child;
(c)to act as guardian of the child; and
(d)to contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—
(a)administer and safeguard the child’s property and property interests;
(b)assist or represent the child in administrative, contractual and other legal matters; or
(c)give or refuse any consent required by law in respect of the child, including—
(i)consent to the child’s marriage;
(ii)consent to the child’s adoption;
(iii)consent to the child’s departure or removal from the Republic;
(iv)consent to the child’s application for a passport; and
(v)consent to the alienation or encumbrance of any immovable property of the child.
(4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).

21. Parental responsibilities and rights of unmarried fathers.—(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child—
(a)if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
(b)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.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfillment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
(4) This section applies regardless of whether the child was born before or after the commencement of this Act.

It follows that he can only enforce these rights as soon as the child is born.

I must also add that his chances of getting custody over a new born is almost non-existent. For him to get it, he would have to allege and prove that the mother is a drunk, a prostitute or a drug addict, none of which applies to your daughter, I am sure.

I would suggest that, as soon as the child is born, or even before if she is up for it, that your daughter and the father attend the Family Advocate in order to get a parental plan negotiated and registered.

Customer: replied 6 years ago.

This is all very legal jargon.

I guess the botXXXXX XXXXXne is if she is required by law to name him as he father. So when she completes the information for the birth registration, does she have to put his name on the document?

If she does not put his name in as father, what rights does he have verses the rights he has if he is named as the father, and does she need his consnt to name him as the father.

She does not have to name him as the father, no. If she does not, he will have to approach the court for an order that would allow him to be included as the father on the birth certificate. She also does not have to have his consent to name him as the father, but if he does give his consent, then he has rights.

She has all the rights that he has, but she has it automatically and she is, until the family advocate or court intervenes, the one that calls the shots pertaining to how these rights are enforced by the father. Since they are not married, he will only have parental rights as per section 18 if one of the instances in section 21 is applicable.

Also note that, if she does not give in to any of those rights, she is entitled to do that until he enforces his rights through the courts, in which case, she then must comply with the court's decision.

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