Rights of Unmarried Fathers Secured

The Children’s Act of 2005 (The Act) has made many changes to the laws relating to children and their parents. The Act repealed many of the old laws which regulated the relationship between parents and their children in South Africa, including the Natural Fathers of Children Born out of Wedlock Act. This has left many unmarried fathers disillusioned and confused about their rights and responsibilities in respect of any of their children. Some even believe that they have lost any rights that were afforded to them and that the new Act only secures the rights of mothers. This is not the case, as will be discussed below.

Previously the rights and responsibilities of unmarried fathers were governed by the provisions of the Natural Fathers of Children Born out of Wedlock Act. This Act proved, in various situations and circumstances, to be insufficient, and inadequate, in protecting the interests, rights and responsibilities of unmarried fathers, their children and the relationship between them. This inadequacy is hoped to have been remedied by the promulgation of the Children’s Act.

Section 18(1) of the Act states that:

” A person may have either full or specific parental responsibilities and rights in respect of a child.”

Section 18(2) of the Act goes on to state that parental responsibilities and rights include the responsibility and 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.”

Section 19 of the Act bestows full parental responsibilities and rights on any biological mother of a child, regardless of whether she is married or not. This position is not any different from previous legislation, but what about the father?

Section 20 of the Act provides:

“The biological father of a child has full parental responsibilities and rights in respect of the child –

(a) if he is married to the child’s mother; or

(b) if he was married to the child’s mother at –

(i) the time of the child’s conception;

(ii) the time of the child’s birth; or

(iii) any time between the child’s conception and birth.”

Section 20 clearly places biological fathers of children on the same level as the biological mother as long as the father falls into one of the four abovementioned categories. What happens if the father does not fall into one of the categories?

Section 21 of the Children’s Act provides that:

“(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;

(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 fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred to mediation to a family advocate, social worker 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 the Act.”

In basic terms Section 21 automatically bestows parental responsibilities and rights on unmarried biological fathers of children if the father is living with the biological mother when the child is born, or if he does not live with the mother, when he accepts to be identified as the child’s biological father or has proven his paternity in court, and has contributed or tried to contribute to the child’s upbringing and maintenance. Section 21 therefore grants and protects the rights of unmarried fathers more adequately than previous legislation. This protection however, does not detract or alter the duty a father has to pay maintenance for his children.

Section 21 applies retrospectively, meaning that it applies to children and unmarried fathers before the effective date of 1 April 2010 and not only to those born after the effective date.

Sections 20 and 21 change the law drastically and give fathers more rights. Fathers can now have joint parental responsibilities and rights with mothers, and all major decisions relating to a minor child (a child under 18 years of age) needs to be taken by the parties jointly. This is very different from the old position where, in the case of a divorced or unmarried parents, one parent (usually the mother) was awarded the custody of a minor child and the other parent (usually the father) would be entitled to visitation. The old position also granted the custodian parents the power to make all the day-to-day decisions in the minor child’s life without needing to consult the other parent. The new dispensation now provides for joint decisions making and a need for consultation between parents.

Even in a situation where a child’s parents were not married, a father can now apply for parental responsibilities and rights if he complies with one of the requirements mentioned above. In such a situation the mother would still remain the primary caregiver of the child, but the father would now have joint parental responsibilities and rights in respect of the child and thus have a say in the decisions pertaining to the child.

It is still important to note that despite Sections 20 and 21 the biological father is still responsible to pay maintenance for any and all his children, regardless of whether he has chosen to apply for parental responsibilities and rights or not.

In the event of a dispute regarding such maintenance arising between a minor child’s parents regarding the parental responsibilities and rights, the dispute must be referred for mediation to a family advocate, social worker, or other qualified person. The outcome of such mediation proceedings is not final and parties may still approach a court to enforce their rights or clarify their position.

The Act further allows a child to bring an application before court, and be assisted in doing so, if the child wishes to have contact with his or her father. If a child is mature enough, of an appropriate age and can fully comprehend the matter, such a child should be allowed to participate in the matter.

In conclusion it can be seen that the new Children’s Act does indeed protect and secure the rights of fathers, mothers and children in a way which has never been achieved before. It is important that the general public, and more specifically mothers and fathers become aware of the changes that have been made so that they may be fully aware of their rights and responsibilities in respect of their children.

Nuno Palmeira


Posted in Family Law permalink

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.


Rights of Unmarried Fathers Secured — 92 Comments

  1. My sons father has not made contact with his son willingly for almost 3 years. He has known about maintenance court dates but refuses to participate unless summond. However has given difficult addresses for these summons so after 4 times has yet to appear. Only on threat of involving his minister father in my proceedings has he given me some money. He words a low paid job and claims this is the reason for low maintenance. He denied paternity and I had to get him to do a paternity test. He even mentioned allowing my boyfriend to adopt him. My boyfriend and I have decided we can no longer survive financially in SA and are deciding to move to Australia to provide a better future for our children (he has a daughter from a previous relationship). Would I be able to apply for my sons passport without consent from his biological father?

  2. Myself and mother of my daughter are not living together, however we have agreed that she ll bring the child today to visit me. The child is 8 years old and it will b 4 da 1st tym she visits me I always vist her, now da grand father refuses should I bring an application to court to compel him to allow the mather to bring my child?

    • You should not be pedantic about theses issues. Discuss the matter with the mother. Applications to court are difficult and very expensive. Unless there is a very good reason why the child should be brought to you the application will probably have no merit.

      Kind Regards

  3. I’m just asking on behalf of my boyfriend.
    He is an unmarried father who paid cash for the birth of his child. He pays R3000p/m maintenance, has medical aid for his child and only sees her every second weekend for 3 days.
    The mother has not been working since she gave birth, moves from one place to another about every 6 month, just moved in with her 4th boyfriend in 2 years (which I personaly think all is very unstable for the child) she claims more and more from the father.
    Does he have a good chance to get custody of his child in this situation?

    Many thanks

    • The courts are usually very reluctant to disturb a custody arrangement even where the parents are divorced.
      Given the fact that the parties were never married this issue is more difficult but insurmountable.

      You should consult an attorney who specialises in this area of the law

      Kind Regards


  4. While I am in a long-term relationship with my partner, I am not certain I want to continue the relationship. We are now pregnant, and he is very supportive and excited, but I do not want him having to much say in the child as I want to end the relationship regardless. Im certain he will maintain contact and maintenance, I however do not want him to have equal rights in making decisions for the child. I know this sounds unfair, especially for such a supportive father, but our relationship as a couple is not working and only causes tension. At the moment he fulfils section 21 a) but I may ask him to move out of my house before the birth… What rights do I have to limit him?

    • You may always ask the father to move out. However living together is only one element of section 21.
      Kind Regards

  5. Can unmarried mother demand maintenance for herself from unmarried father of her child. She refuses to work and / or pay any costs in respect of the child yet demands that father pay all expenses.

  6. Question: my son is now 9 years old. we were not married, and will never be with his father. For the first 5 years of my son’s life he did not contribute anything for his maintenance. Because he was sill bitter over the failed relationship he said that he will only support the child if he stayed at his home (with his mother) and he said that we should stop all communication. I tried numerous times to make him part of his son’s life with no success. On the last year of pre school he started showing interest; started communication thru my aunt. I didnt want anything from him directly so I said he can pay for schoold fees. He is now married, and so am I. I was living in another city for 3 years, and my son was left with my dad in the same city as my son’s dad. I have taken the child to live with me and he is now throwing his toys, saying that he was not consulted on the relocation. I never had to consult him for anything before because he chose not to speak with me anymore. I have always made an effort for my son to visit his father/ his family. When they were in the same city he did not even take the boy to soccer matches on weekends, and he stayed less that 5 minutes drive from him. Now he is threatning to take the legal route to force me to return the baby because he was not consulted about his move to live with me and my husband.

    Please advsie what right I have in this situation.


    • Please refer to section 21 of the children’s act above. In the circumstances which you describe it is unlikely that he has any rights at all.

      Kind Regards


  7. Hi I really do not know what to do anymore. My ex says she is pregnant with my child. I believed her for a while. She moved up from Cape Town to Johannesburg and we moved in together. We got engaged and we got a date. In November 2012 she told me she wants to go visit her parents I told her I understand and even toke her to the airport. A week went past I was in and out of hospital because of a back problem and on the Sunday she told me she is not coming back. Now she lives in Cape Town and she kept on braking promises and lied to me over and over. One day she phoned and told me I must start to pay maintenance so I asked before I pay it please provide me with proof that it is my child. Now she and her father is telling me that they will make sure I have nothing to do with the child. What am I to do now?

    • Section 21 of the Children’s Act is the key to establishing your rights. You do need legal assistance, please consult an Attorney
      Kid Regards

  8. I have a friend who has a parenting agreement in place with his ex girlfriend with regards to their 8 month old daughter. It does mention that when the daughter turns 18 months that they will discuss the daughter going to the father every second weekend. The mother is now refusing this and says that he needs to wait until the daughter is 3 until she will consider this. What can he do to object to this? Is there a “legal age” where you need to wait until the child can spend nights or weekends wit the Father? The father is currently allowed to look after his daughter while the mother goes away on business trips for up to 2 weeks BUT he is forced to have to stay at the mom’s home instead of being allowed to have his daughter at his place. What are his rights?

    • Without the benefit of seeing the parenting agreement and knowing the issues first hand, the process would be an attempt ant mediation followed by litigation.
      Please be mindful that the circumstances will dictate the outcome as there are no absolute rules in matters of this nature.
      Kind Regards

  9. I have a problem. I currently stay with my girlfriend and at her parents. I applied for a post in Cape Town due to the fact that my girlfriend was almost near her due date to be near her and the baby. I am from Worcester. The thing is she is 17 now but that part I did not know. I found that out from her parents. She told me she was turning 21. But we got past that for the sake of our child. The baby was born and she is a month old today. Beautiful princess of mine. The thing is the grandparents now wants to have the last say when it comes to the wellbeing of my child. Even went as far as saying that if I move out then I should know that the baby is not going with me. When they found out my gf was pregnant the gave her 3 alternatives. She must either go for an abortion, go away because they ashamed of her or tell the baby to call them mother and father. We argued the other day when they wanted my 3 week old baby to go with them to church and I said no. she is too young because their church is on until late night. And that night they came home 11:50. My gf said her mother makes her feel that she has no say when it comes to our daughter. I found her crying a lot of times when I come home from work because she says it feels like the baby does not recgnise her. She keeps crying when she with her and then the mother comes and takes the baby. I don’t know what to do because like they say Im not going to take my child with. I provide for both my child and my gf. They don’t provide for her anymore. What is my right as a father in this regard. I am 24 years old.

    • Difficult situation. If you left with the mother of your child that would be appropriate.
      If you left without the mother, then most certainly you would not take the child with you.
      Kind Regards

  10. Violet
    I have a 10 month old son with my boyfriend; we broke up when my son was 8 months. We both were unemployed at the time I give birth and both our parents agree that they will assist us financially were possible. We both got jobs, but mine is commission base and he is getting weekly pay. From birth my mother has been contribution the most, having my son on her medical aid, pay for the crèche, buying the nappies, food, e.g. His parents both work, but will only give 1 packed of nappies and a tin of milk, if they can afford it that month. When we broke up we agreed that we will take turns weekends to spend time with our son, he will have the Saturday and I will have the Sunday and the next week we will alternate, we also agree no sleepovers yet, as my son only wants to be with me at night. I also told him that my mother will drop and pick up my son; I do not want him to travel in a public taxi, due to safety reasons and also not with his friends as they all use alcohol. He now wants to tell me that it’s also his son and he will make discussion on when I must come fetch him, were he must go and all other things. Do I have the right as the mother to decide the visiting hours and travelling arrangements? Can I tell him and his parents to contribute half on my son’s monthly expenses?

    • As a rule the courts will not allow young children to be removed from the care of the mother. The correct procedure would be to allow supervised and if it goes well allow more access depending on the best interests of the child.

      Save for establishing a parental right, the amount of maintenance has no bearing on correct and proper access to the child

      Kind Regards


  11. I have a 9year son out of wedlock. His biological father never paid damages and seldom contributed financially. When my son turned 4years this man stopped seeing him altogether or even contributing anything financially. 5 years later the biological father had reappeared wanting to be part of his sons life. Of the 5 years he had vanished my now husband took over as his father and this is the only dad my son knows. I am worried that his biological father’s reappearance may disturb him emotionally and at school – he is currently in a remedial school preparing for mainstream schooling. We have always planned to tell him the ‘truth’ when he is older but not at this age. What rights does the biological father have in wanting to see his child bearing in mind that he never paid damages, hardly paid any maintenance, I never lived with him and for 5years he has not seen or spoken to my son, I never lived with him…

  12. My ex girlfreind and her family is moving ou of Cape Town permanently with my 2 year daughter.I was never consulted,We broke up suddenly due to her family being muslim and this according to them is not going to work out ,I have been supporting her and love my daughter,What rights do I have and what do i do.Please help

    • If you think that you fall within S20 set out above then you will acquire inter Alia rights of access.
      Unless there are compelling reasons your rights of access will be exercised where the child is located. As a rule the courts will not stop the mother migrating with the child

      Kind Regards


  13. My child is 4 this month and born out of marriage and we did not live together when th child was born. I allow the father to see his son every second weekend. In the 4 years he has seen his child about 15 times. Now he wants to take his child for weekends, and I am not going allow it, because his son doesn’t know him. He started paying maintenance after a year of birth cause I took him to court. What is my rights when it comes to this.

    • We suggest that arrangements be made for supervised access until the child is comfortable with the father.

      The courts are unlikely to deviate from this

      Kid Regards


  14. Good day,

    I wonder if you could please answer a question for me. I was never married to, or have lived with the father of my son. My son is 10 years old. I had and office affair with the father, and he was married at the time. I was single. He subsequently got divorced, but got back together with his ex wife when our son was 3. He has never acknowledged his sons birth, he refused to put his name on the birth certificate, even after a paternity test proved positive. I have gone through 3 maintenance court trials over the past 10 years, and he has always paid under duress, and at times, short paid, or not paid at all. He also currently owes me about R7000.00 in arrears maintenance, that I cannot bear to pursue any longer, as it is too much effort, and too stressful to go through again. He has never made an effort to exercise his “responsbilities” towards our son. Has never attended school meetings etc, my son is in Gr 5 now. We did go for mediation once before 5 years ago, in 2008 at the family advocate office and I agreed to visitation every second saturday, for the day. From the fathers side this only lasted 3 months, and then he stopped seeing our son after that. It was mainly due to the fact that his wife was not happy with our son being in their home etc, as a constant reminder of the affair he had with me. Now, five years later he wants to resume the agreement of every second saturday, and we are in the process of mediation with a social worker. However, his wife is still refusing to be part of the process and will not allow my son to sleep over at their house etc. I do not feel this is good for my child, he may suffer emotional damage etc, and if his father decides again after 3 months, this is all “too much” my son is left to feel disillousioned once again. What can I do? I also do not want this man in my life, coming and going twice every second Saturday to my home. I appreciate he is the biological father of our child, but his past behaviour has left me feeling like I do not trust him and believe him, and I am worried my son gets hurt in the process. He also has a previous child sexual molestation charge against him from many years ago. The case was dropped as the girl involved decided not to give evidence. This is all very stressful and myself and my son are happy and lead a good life, I do not want all this disrupted to no avail if this man will not stick to his word. Please help!

    • It seems strange that the father would want access under these circumstances.

      From your note we presume that there is an order in place to allow access to the minor child.If there is you need to comply subject to the process, failing which you may wish to withdraw.

      We suggest that you stay in the process and make sure that you consult with an attorney.


  15. i got divorce after meeting my girlfriend,whom i have been living with for the past 6 years.We have a LOVELY boy 3years old from this relationship.he is my world!!My other 2 sons live with my ex wife , now married.We went on holiday in December to another Province where her family reside and as always for the past 3 years,when we are there she starts gambling day and knight.I then just got fed up again with all this and we had a major arguement,and she told me she had enough of me telling her not to gamble.her whole family gambles and some of them and herseLf have banned themself from the casino for a while.She also said ,why should i go with you if you not paying my morthers rent for last 2 months!! i explained and she knows my business is down and i am not in such good financial position as i use to be.Before baby was born she came back to me , so that she could give birth in private hospital which i paid and we worked out her cambling adiction.i have been taking care of her and paying her accounts since baby was born and her morthers rental in another Province,as she gave up her job to look after baby.I can not allow my child to grow up in that enviroment.Baby is on my medical aid and i have recently removed her from my medical aid.I do comply with section 21 and know courts will never remove such young children from there mother nor stop a mother to migrate!! I just cant see him grow up like that, cause i have lost so much from my other 2sons childwood,cant let this happen to him!!I had to pay money direct to the food store account where they are residing, cause i am afraid they would use the money for gambling.The grandmother who takes a drink with her boyfriend looks after the BABY in the evening or sometimes from the afternoon when she go and gamble,the grandma always have arguements with the boyfriend and who know what happens when my child is there!!But i have witness it already!!!!!JUST WANT MY SON TO LIVE BY ME!!HELP HELP PLEASE

    • The chances of a father removing a child from the care of a mother are very small, but not impossible.
      Please consult with an attorney who is an expert in this area of the law.

  16. Hi, I have a 2 month old baby born out of wedlock, my boyfriend and I split up before she turned a month, he is not interested in having much contact with her. Can I still apply for maintenance from him? By paying maintenance how much rights does it give him and what is the legal age he can take her for weekends and out of my supervision?

    • Rights and maintenance are separate issues.

      If he takes an interest in the child then the situation may change.



  17. I have a son who is 7 this year, been paying maintenance since he was a year old and seeing him 2/3 times a month and not allowed to take him for a weekends into my house, been told by the mother that I can only take him in the morning and bring him back the same day. Can I successfully pursue this to be able to get weekend visitations?

  18. My husband was in a relationship with his sons mother for 13 years, they had the boys out of wedlock, but she agreed to register both boys under their fathers surname. We have asked her on numerous occasions for their birth certificates which she refused to give. Then a couple of weeks ago gave us copies. We tried to open bank accounts for them , but the banks need originals, so my husband went to apply for them at Home Affairs. They needed her Id number which she also refused to give, so I got if off previous court documents, as her and her new husband tried to adopt the kids and was turned down by the court. My husband finally got the birth certificates, only to discover that she had changed oneof the boys surname to her maiden name in 2010. Yet last week gave us copies of the original birth certificate. I emailed home affairs and they say the mother is allowed to change a child’s surname if the parents weren’t married. Yet in their own amendment it says a fathers consent is required irrelevant of them being married or not. I have read the children’s act but can’t find where they discuss the change of a minors surname. I’m very confused , could you please advise.

  19. My husband decided that he wants a divorce, he said he should never have married and that he is tired of hurting me and our 2 year old daugter. We decided.that she will stay with me and that he can visit her anytime he wants. I would just like to know if I can refuse that she visit him in his place (he will rent a room somewhere) and can I refuse her sleeping over? He is an acoholic and sometimes starts drinking early in the morning and gets very unstable when he drinks.

    • Given your husbands problems he may not be entitled to unsupervised access.

      So the answer is probably yes, but make sure that you take proper advice before doing so.



  20. Hi there, I have recently entered into a legal battle with my 12yr old sons mom. She decided to move to Swaziland and even though I contested it and my son told her as well as the Family Advocate that he doesnt want to go to Swaziland, the court granted her permission to take him there. I saw my son on a weekly basis for 10yrs and also saw him every single holiday. I now also find out that she changed his surname in 2007, this was done without my consent. Is she allowed to do so ? We were living together at the time of birth and my son got my surname.

  21. Hi there. My (now) husband has a son out of wedlock with his former girlfriend and they’ve have arrangements in place (outside of court) whereby he supported his son financially and could see his son. After 3 years, the child is now used to spending every 2nd weekend in our home and with his father and I. The child’s mother is now saying that we leave her child alone because she doesn’t like that we don’t raise him precisely the way she wants it to be done. As the father of a child born out of wedlock, can my husband fight this and if so, how?


  22. Hi I would like to ask on behalf of my husband. He has currently gone through a mediation in order to see his child. They agreed in the mediation that he would be able to see his child for one day every weekend. He requested a paternity test as the mother gave him reason to believe that it is not his child. However if she is his child he would still like to be a part of the child’s life as he would still consider her to be his daughter. Is this possible? And how does he apply for the High Court if she goes against what was agreed upon in the mediation.

    • The High court is the upper guardian of all minor children and as such may not agree with a mediation agreement. In practice unless there is something substantially wrong with the agreement the court will not interfere

  23. Hi
    My son was born out of wedlock, however we were living together at that stage. We separated and saw a lawyer, wrote up an agreement that I as the father would see him every second weekend, I have also paid his maintenance for the last 7 and a half years.
    She recently left South Africa, taking him with her, with no consent from me, not even a goodbye.
    What rights would I have to get him to come home to me? And how should I go about it?

    • You will need to see an attorney, this is not a trivial problem
      There are issues as to
      – How the child was remove
      – International Conventions
      – Where the child was taken



  24. As a single, never married mom, I’m moving to SA next month with my kids (7 and 10). Their father lives in SA. Where I live now, he has no parental responsibilities or rights as we were never married. He is listed as their father on their birth certificates. While applying for schools in SA, I am repeatedly (and insistently) asked for a copy of the custody agreement – which does not exist! Will I have to get a custody agreement when we arrive in SA? He has never contributed financially to the kids since we split up, and I have always given him as much access to them as he wanted. I thought this arrangement would continue in SA – I keep primary custody and make all decisions – I keep full parental rights, and he sees them as much as he and they want. What will the situation be when we arrive? Will he be able to gain parental rights (decisions on schooling, health etc) or even custody (full or partial)? Even when we lived together I made all decisions pertaining to the children – however I suspect his family in SA will push for him to get custody and that is concerning me – I do not want to have my kids spend half a week at my house and half a week at his (assuming he ever gets a house and a job).

    • Firstly, you don’t say where you are from
      – Financial contribution is not really a factor in the discussion
      – Unless there is something very wrong with you arrangements the chances of him getting custody are remote.
      – The fathers of illegitimate children will acquire parental rights where there is some form of participation in the child life
      – In South Africa we have a system of joint parental rights where both parents share the decision making process.

      Your questions are not trivial and such such you should not rely on this response



  25. Hi
    My son was with his girlfriend from day one when they heard she is pregnant. A few months ago she told him that she is going to visit her mother for a week and then she kidnapped their daughter. She moved in with another man with baby. Two months later she returned to my son. She started working as a bar lady. During day she is either drinking and sleeping and cant look after the baby or she moves in with another guy basically every week. Welfare took all the kids in that house away this weekend. She is in bar fights permanently ect. Now what i want to know: my son has a permanent job, stays with his mother and step father with baby, we have our own business, he has been paying for everything from day 1, he is a very good father and want to look after his child. He doesnt want welfare to take his child but he wants to take her and take care of her because her mother is unfit – what can we do and how can we do it?

  26. Good day

    I urgently need some advise but my story is so long and I really don’t want to hang my dirty laundry on this page. Is there a e mail address that I can make use of.

    Kind Regard

    • Dear Rachel

      Should you have any queries you are welcome to email us on info@mclarens.co.za.

      Upon perusal a member of our staff will respond.

      Kind Regards

      McLarens Attorneys

  27. Hi, I’m Candy. I have a 1 year 7 month old son from my ex boyfriend. In October last year I took out a protection order against him because of his violent acts and because he has put his sons life in danger. In December last year I opened a case against him for Malicious damage to my property as he burnt all my stuff on my balcony with a petrol bomb knowing his son and I were alone in the house. In February this year, he assaulted me so I opened another case against him, the judge has given him a periodic sentence as his consequence. He does not support his son at all. I have given him full visitation rights but he abuses it. He is not interested in his son, he’s more after me. I have warned him but he doesn’t listen. I allow him to see his son on condition that he doesn’t come after 8pm and that he needs to notify me about when he wants to see his son so that I can make sure his son is available to him at all times. Now he wants full visitation rights to his son and is trying to prove to the courts that he should have full custody of our son. He is still serving his sentence, doesn’t work, drinks all the time, steals to take drugs and I do everything for our son from date of conception till now. What do I do now? I don’t want him to be a part of his son’s life. He cant take his son for the weekend because his parents and family drink every weekend. I wont allow my son to be around all that. I don’t even do that in front of my son. He doesn’t want to be a part of his son’s life but uses his son to get to me. I don’t trust him at all. I am too scared to let him come visit his son when I’m alone at home. He is capable of anything. Please help me with advice?

    • Dear Candy,

      In terms of the Children’s Act an unmarried father obtains automatic parental responsibilities and rights in certain circumstances, which would include a right to contact and access to the minor child.

      While it is not proper to deny a father access to a child, there are various options to ensure that such access/contact is structured and controlled to cater for the best interests of the minor child. In considering what structure or control to implement, the courts may take prior conduct and court orders into consideration.

      In respect of support/maintenance, it is the obligation of both parents to maintain their minor children and a maintenance order can be obtained through a children’s court or maintenance court to ensure this.

      It is advisable that you consult a Family Law practitioner and obtain proper advise on how to approach and deal with the matter in light of the prevailing legislation and circumstances.

      Kind Regards

      McLarens Attorneys

  28. Hi,My Fiance has 3 children with his ex girlfriend,the middle one (age 9) is not his but he took the boy in as his own.His little girl is not allowed to visit him during holidays even though he pays maintenance for her,how does that work?the oldest boy is 13 now and wants to stay with his father,but the mother refuses,what must we do?How much maintenance is required per child?

    • The payment of maintenance is not related to access.
      To deal with access / custody / care of the minor child you will need to make an Application in the High Court or Children’s Court. It would be advisable to retain the services of a Family law Attorney.
      The amount of maintenance is dependent on the needs of the child, and relative earning capacity of the parents

      Kind Regards


  29. I am a father of a 4 year old boy. He had been living with me for 14 months, and the high court has now decided that the mother has been drug free for 6 months now, and ordered that my boy must go stay with his mother now. My question is? can I right him off now, and not have to pay maintanance, and not have him in my life, as financially this has put us back, and we dont want to fight this any longer.

    • This is a very unfortunate outcome and far be it from us to second guess a court order.
      Unless the child is adopted by the husband of your ex (Presuming that someone is that stupid), your obligation to pay maintenance will remain.

      I was in a similar situation many years ago for a client. The judge in the matter felt that I spoke out of turn and threatened to lock me up.

      From a humanitarian angle your child probably needs you more than ever. Even as Lawyers we feel the injustice.



  30. Good morning
    I have a 3 year old son who is living with his mom in Germany. I am currently here in Germany as well and very unhappy with how he is behaving.
    Now the story evolves from when 2 years ago his mom cheated on me and has always been in a foul mood and sometimes even neglected our son. We are not married, never were. Last year July, she left with our son to live in Germany and now she doesnt want him to move back to Cape Town with me.
    She has another new born baby from another guy, who has not even been around for the whole pregnancy and i cannot allow her to do as she pleases as she has always done before, she never consults me in doing things, he stays with her and that is how she thinks it should be.

    I would like to know how do i apply for a custody case for parental rights for my son.
    He is a south african citizen and myself too, she has dual citizenship.
    What are my rights and how do i get this matter sorted?

  31. my sons father pays maintenance. we were never married he has no interest in seeing my son thus far , he is 13months old. what rights to access does he have to my son, and do I need his approval to leave the country or province? please give me advice on how to go about putting guidelines in place and making the right choice in moving. inline with south African child laws

    • Dear Madam,

      If the father’s rights to access are in dispute or have never been properly determined, it is advisable that the parties attempt to reach an agreement, alternatively the matter must be mediated.
      If the parties cannot agree, or if mediation fails, either party can approach a Childrens Court or High Court to determine the matter.

      As the biological mother of the you have full parental rights and responsibilities in terms of the Children’s Act, which generally includes the primary care of the child in question and would entitle you to move the child to another country or province. If both parents have joint care or if the father is in opposition of the move, he may apply to court in an attempt to stop the child from being relocated.


      McLarens Attorneys

  32. My daughter is 3 years old and I have not been living or been married to her father. As a matter of fact we have not had a relationship for the last year. Since her birth, he has not been a very prominent figure in her life and she does not really know him as he visited her whenever it suited him. For the past year, he has been out of the country for 3 months and another 2 months in a different province. I have brought the matter to a mediator and the children’s court in my town, where the result was that a court order was issued requesting the father to undergo parent/child bonding therapy, which the father attended twice in March. He now again wants to visit my daughter and the court has once again requested the therapy to be completed. In the past year, he has seen her a handful of times, including the 2 therapy sessions, all under supervision as set out by the mediator. As the court has “revoked his parental rights and visitation” until such time as the therapy has been completed, I would like to know if I can appeal the court’s decision, as the therapy confuses my daughter and I am not sure if the father will complete the therapy this time around as he never did in the past. I have my child’s best interest at heart, but are unable to convince the mediator or the court that it is in her best interest that her father’s rights be revoked permanently due to the trauma caused by the therapy and her father walking in and out of her life whenever it suits him. I have no financial means to involve a family advocate as I am paying for the mediator. Can I appeal? And if yes, how?

    • At the moment the German Court would have jurisdiction. We suggest that you consult a local attorney or alternatively request the assistance of the local child support authorities.



  33. My sons mother has now decided to move to johannesburg and have only given me notice now ? he is in Grade 2
    and we share custody. where do i stand in this matter and what can i do ?

    • If in fact you do share custody she cannot move the child without your permission or court order. Your remedy is a court order to stop her moving. You should see an Attorney for proper assistance

  34. i have a 2 years daughter with my ex girlfriend, we were never married.so we are now seperated after i lost my job in december 2012 and she is saying i can never see my baby as the agreement between her and her new boyfriend.so now i am not working.do i still have a right even though i can’t make financial contribution to the child?

  35. I need urgent advice. My boyfriend has a 3 year old son with his ex girlfriend. They lived together when the child was born, and only broke up after the child was 2. He pays maintenance and the child stays with him once every week and every second weekend.She has been issued with a passport for his son without his permission. Home affairs has agreed that they should never have issued the passport. We have found out that she is wanting to move overseas any time now. Home affairs now wants us to get a court order to get the passport cancelled. Apparently this is going to take time and money as we will now have to prove why we dont want him leaving the country. This is urgent as she has already taken him to another city without his knowledge or consent and this is just a stepping stone to her leaving the country. She could be leaving any day now. Do you have any advice on how we can handle this or who could possible assist with this sort of matter? We are based in PE

    • It is possible to bring an application to stop the removal of the Child from the RSA.
      BUT, once all is said and done the court may well allow the mother to take the child overseas with her.

      You need to see a local attorney.


  36. By Law what is the right age for a child (8 months old) to sleep over by his father? As the father wants him to start sleeping over right away… And I may have concerns

    • There is no law that stipulates at what age a child will sleep over with his father.
      Each case is dealt with on its own merit.
      Please see a family Law Attorney


  37. Hi my son will be 4 in November. His mother and i have been on and off for the last 15 years. She has left me every 4 years. This time i had asked her to move out as she has treated me badly on and emotional level. We have basically been apart for the last year but still living together she is looking for a place for her and her parents now. With the work that she does she only sees him for 2hours on a late shift and 4hours on an early shift a day 6 day a week if he goes to bed at 9. When she has stocktaking he does not see her for 2 days. Do i have the right to say he should be with me when she is at work or at least who looks after him? When she is not there which is most of the time.

    • Because you have a relationship with the child you will be able to approach the court to define your legal rights.

      Please see an attorney



  38. Hi, My son has a baby , the girls mother , whose divorced from her husband wanted to give the child up for adoption but her ex said that him and his girlfriend would take care of the child.11months later they realise that it is to much for them and they arent coping.From the outset my wife and I have offered to look after the baby but wre’nt even considered.
    I have now heard that the woman who did’nt want the child in the first place now is prepared to look after him. What rights do we have in fostering the child and the child will also be relocated
    about 250km away without any discussion with my son or us. He has visited his baby as often as he can , the child has spent two weeks by us and we contribute to maintenance, Should’nt
    we also have a chance at raising our grandchild.
    I also believe that the other grandmother will have a nervous breakdown, she made it
    very clear to us in the beginning that she would not cope.
    I really concerned about the child.

    • Dear Keith,

      As a grandparent you are an interested person in the care and well being of the child.

      In terms of Section 23 of the Children’s Act it is possible for any interested party to make an application to be awarded the care of the child, or contact with the minor child.

      These applications may be brought in your local Children’s Court, Family Court or High Court.

      The process may be lengthy and it is advisable that you approach an experienced Family Law practitioner for assistance.


      McLarens Attorneys

      • I honestly appreciate your time in answering my question. I’m seeing the Social worker soon and will be back with more questions. I do however believe that I’ll need to make use of one of your family lawyers.

        Kind Regards,
        Keith Robbe’

        • Dear Keith,

          We would be glad to be of further assistance and should you wish to contact us to arrange a consultation, kindly email our staff at info@mclarens.co.za

          We wish you luck in your endeavours.


          McLarens Attorneys

  39. Hi, i have a problem i need advice, i dated a lady and she fell pregnant with my child, and that time our relationship was not good at all, and suddenly she told me that she is getting married to other guy, and i asked her what about my child that you are carrying? and she said the guy is willing to marry he in that condition and my next question was does the guy know that it is my child and she said yes. now after the child was born she refused me to see the child, and eventually visited me with the child. but again she started telling me that i cant see my child again. and now that she is married to another man, she is refusing to let me see or provide for my child. i would like to know what to do in this situation? where must i go for help because the mother and the step father of my child are refusing to let me have access to her.

    • Dear Gift,

      From the facts provided, we assume the mother has accepted you are the father of the child.

      Your rights as an unmarried father, are being placed in dispute by the mother of the child.

      In terms of Section 21(3) of the Children’s Act, it is necessary to have such disputes mediated. You may approach the office of your local family advocate, or social worker to commence mediation proceedings.

      Should the mother of the child refuse to attend mediation proceedings or allege that you are not the father, you can approach your local Children’s Court, Family Court or High Court by way of an application to have your parental rights established and enforced.

      It is advisable that you approach a Family Law practitioner who can properly advise you once they have been provided with all the material facts.


      McLarens Attorneys

  40. It is great to see such prompt responses.

    I do not dispute that the father of my child is her father, but I feel he is unfit and should be denied access (drugs / alcohol problems, general irresponsibility etc). If access cannot be denied altogether, is it possible to agree to supervised visitation for an indefinite period, to reassess at a later date?

    He has not seen his child; was not there during pregnancy, has made no financial contributions (a comment on his character, as I understand maintenance is separate) and seems to have no interest at all, but is all of a sudden asking to take the child away, and that we must “share” her. She is only 4 months old. This is due to societal pressure, more than anything, as it is clear he has no interest in the child.

    What is reasonable contact? Every second weekend for an hour? or is once a week better? Would that be sufficient?

    Your advice would be appreciated.

    • Dear Jessica,

      You are correct that Maintenance and Access are separate issues.

      If a father’s parental rights and responsibilities are not in dispute, generally, a father is entitled to have access to the child.

      What remains to be determined is the degree of the access which can be agreed upon between the parents of the child.

      If no agreement can be reached it is advisable that you approach your local Family Advocate and request that an investigation be conducted into the matter to determine whether the father should have access, and if so, what the degree of such access should be.

      The Family Advocate operates as a public service and is free.

      The Family Advocate’s report can then be used in support of an access order in a Children’s Court or High Court.


      McLarens Attorneys

  41. I have been living with my partner for almost 12years and in this time we bought a house together and have had 3 children but have never been married. I recently asked him to leave the house we both own as I found out he was cheating. He has since moved out (3 days) and the kids and myself are living in the house – he hasnt discussed finances or the house and does have habbit of being verbally agressive and vendictive – so I before things turn ugly I want to be prepared and know what both our rights are, what maintence I can claim and how is the maintenance value calculated. He loves his children and would do anything for them but does have a alcohol and gambling problem. We both run our own business and income is not regular set amount however I earn alot less than he does in a year. I am worried how myself and the children will survive financially and what to ensure that all my childrens needs are met. Would you advise I get whatever we agree upon in writing and where can I go or find a stand agreement? I do not have the ffinances to go to a lawyer or the strength for a lengthy legal batle.
    We did separate before and have an agreement about the house and our eldest child – however that was years ago – would that be null and void. We have agreed in the past verbally that should we ever separate I would keep the house and continue paying the bond and should I ever sell then he would get his share or the children would receive the money. Advise is really appreciated. Thank you

  42. Hi there
    Please help. My son 22 had a girl-friend that moved in with him after just a month. He was paying the rent extra, but after a just a few month’s with her having his credit cards spending and not paying for any thing, he told her it’s over. She came back after a month wanted him back and told him she pregnant.
    At first he wanted (out of shock) to do nothing with her or baby, but after few months he told her he wanted to be involved with baby and he was there when she gave birth.
    The problem is that she is still in love with him and now uses the baby to manipulate him. While pregnant she had a decent job that she resigned from and is working till the end of pregnancy in a bar. Both her dad and herself moved in with an aunt not having a place of there own. She also smoke’s (my son stopped) when he she was pregnant, and also took some alcohol in while pregnant. She wants to return to this bar working very long hours with the baby. I asked her where this baby will stay and she told me there is a little corner where she will put her. It is a little space, very small in the kitchen with not even a window or light!!!! The baby is now 5 days old and she wants to return if baby is a month old. My son with a decent salary package and staying with us in his own flat can not see it fit that his baby daughter is brought up in a bar with loud noise and alcohol. She do not want to leave the baby with us while working and wants to take the baby to bar every day and say’s that the baby will love the loud noise!!!
    Please help as we will give the baby a stable house to live in with my son working and urning a decent salary and me (as grandparents) will look after her during the day.
    If she is bringing the baby to us she is always present. And is just for an hour. Please help!!!!!!!!
    Thank you

    • Dear Elmarie,

      It is advisable that your son establish his rights formally through mediation proceedings, alternatively through a court application in the Childrens Court, Family Court or High Court.

      Once the rights have been established, should there still be cause for concern, you may request your local Family Advocate to investigate the situation and report on what should be done in the best interests of the child.

      It is advisable that a Family Law practitioner be consulted to assist with the process.


      McLarens Attorneys

  43. Good day,

    Thanks for extending your hand to so many of us who needs your guidance.

    I’ve been in a relationship for the past 5 years, which ended last week. We have an 8 month baby boy. Since pregnancy, i always had my doubts that this is not my baby.but being the person i am. i went through with it. Took care of the mother during pregnancy, and too care and provided for the baby until this afternoon. Last month i did a paternity test using the home kit (my and the kid) without the mother’s consent. Results came back on the 1st of August, excluding me from being the father.

    Last week i told the mother, who insisted i’m the father and the results we fake. I requested for a legal DNA test, of which i was willing to pay R4 000 for the tests, and she declined saying it’s waste of time… Yesterday, i told her that i got my peace of mind, and i’m no longer going to provide for the child. Today, she show’s up at my house with the the police bringing a summon to appear in court on the 26th of September.

    1. Before i am forced to maintain a child who’s not mine (which I’ve been doing since day 1), will the courts accept my request on the day for a paternity test.
    2. If i don’t give her the money for the child this month until judgement, will that be used against me on the next court appearance..

    Thank you once again..

    • If Paternity is in dispute the matter will not proceed until this issue is resolved by way of paternity test

      Kind Regards


  44. hi – my fiancé decided to go back to her ex boyfriend taking our 10 month old son with her. Despite all attempts to contact her and find out how he is doing, she is ignoring me. We have been together for 4 years – she started seeing this guy again behind my back. She has no job and has moved in with him and I am worried about my son and how he is. I was supporting all 3 of us and my son was in a very good nursery school and doing very well and she has just uprooted him and left. I would like to get custody of my son, but I suppose this is near impossible. I definitely intend to keep being part of his life but I am concerned that his mother will refuse that I see him. I am devastated and very concerned for my son’s wellbeing…
    What are the chances of getting custody or at least joint custody?

    • Dear James,

      Kindly note that with the promulgation of the Children’s Act the concept of “custody” has now been replaced with that of “care”.

      As the child is born out of wedlock, the care of the child is automatically attributed to the mother.

      If the mother of the child places your rights to contact in dispute, a process of mediation must be attempted prior to any court action being instituted.

      If mediation proceedings fail, it is advisable you approach your local Family Advocate and request an investigation into the matter. Once the Family Advocate issues a report, you may consider bringing a court application to have your rights to contact and/or care of the child formally established.

      It is advisable that you consult a Family Law practitioner who can assist you with the process.


      McLarens Attorneys

  45. It is my understanding that if the father of the child contributes towards the child and makes the time to show interest in his childs life , that he has ” earned” the right to have access to his child.
    I’ve been dealing with something similar and it was made clear to me that a father (out of wedlock) has rights as does the mother, she however can’t dictate what you may and may not do. You should contact a social worker in your area to get in touch with your child’s mother and get this sorted. You certainly have the right to have access to your child. You should also voice your concern over the welfare of the child. In all the research I’ve done on this subject , one thing stands out above all ie. All the descisions that are made MUST be in the CHILDS best interest.
    I am sure that having a caring , loving father is in your childs best interest.
    Follow the right channels and don’t just accept any terms and conditions that you’re not satisfied with, fight for your rights and that of your child , that you may have no regrets in the years to come.
    Also importantly, is to try and have an amicable relationship with your ex , children are very sensitive , even at such a tender age.

    God Bless you.


  46. Hi
    I had a baby with my ex after we broke up. I had to pay R40 500 for the hospital bill cause she had no money. And we had a verbal agreement the we would pay it 50-50.
    She has said she doesnt want maintence which i didnt think was right so i made a deal with my exs mother that i would buy nappies and folmula.
    Our daughter is now 9 months old, my issue is that im only allowed supervised visits and have to go to her house to see her. i have asked if i can take her for a day every now and again even if its only twice a month but she just says no.
    Do i have any rights to unsupervised visits, in other words take her for a day?

    • Dear Ian,

      As the unmarried father of a child, it is advisable that you first establish your parental rights and responsibilities, preferably by means of mediation proceedings.

      Establishing your rights would structure the parental rights and responsibilities, including the contact between you and the minor child.

      Regrettably, without you having your rights formally established, the mother is able to dictate the contact and visitation, as she is attributed the primary care and guardianship of the minor child automatically.


      McLarens Attorneys

  47. hi there
    I split from my ex when our daughter was three years old. She is now 15 years old. I fought tooth and nail to get joint custody and finally get him to pay maintenance and got a court order. In 2010 he stopped paying. He contributed only to the schooling, medical but not the money he was suppose to transfer each month. Unfortunately we had moved to Cape Town for a year, so it was a little difficult to get back to Johannesburg to get the documents to fight him. After the year, we returned and he only made a quarter of what he needed to pay. For another year we struggled. Last year i decided that he needed to show responsibility and let my daughter stay with him for 1 year. The year is almost up. What happens then. Do i go back to court to get him to pay maintenance again? Thanks

  48. I have a 5 year old son.the child is on my medical aid I’m supporting my child fully n I got slips from may this year to date.since others were stolen by his mother n I knew that she is planning to put me through court because I caught her right handed with another man.she went scared that I’ll be violent to where else m not.she then went to court to make protection to make sure she keep a distance from me.it was july 31 this year the order was informing me to appear on 5th of september unfortunately I couldn’t succeed to oppos it I was told that it too late.plz tell me what are my right as a unmarried father.they give me hard time with her family now they don’t allow child to visit me they come with police n claim that I stole a child even if a child is crying to go with me still they promise to hit my child telling him to keep quit plz advise me wat to do

    Kind regards