Know your rights this Father’s Day
Being a good dad means both talking the talk and walking the walk.
For most men the sting of divorce is certainly felt more when they spend their first Father’s Day alone. It’s a clear sign of what once was, no longer is. It’s also a sad reality that many unmarried or divorced fathers are not aware of their parental rights – for them, Father’s Day does not have to be spent without their children.
“Though many South Africans still believe that unmarried and divorced fathers have limited rights to their children and that mothers have the sole right to make decisions for the child, this is no longer the case. With Father’s Day on Sunday 15 June, now is the time to take a closer look at the rights of unmarried and divorced fathers, to make them aware of what the law says,” says Yusuf Boda, head of the legal department at Legal and Tax.
Rights of an unmarried or divorced father
The Children’s Act 38 of 2005 marked a milestone in how natural fathers’ rights are handled in South African law.
“On Father’s Day, it’s worth remembering that fathers, married or unmarried now have rights they did not have in the past,” says Boda.
“This is great news since fathers are as responsible for their children as mothers are and should be allowed to play a significant role in their upbringing,” adds Boda.
According to the Children’s Act, even after a divorce, the biological father still has full parental responsibilities and rights in respect of his child unless a court orders otherwise. The unmarried biological father acquires full parental responsibilities and rights in respect of a child if he:
· Is living with the mother in a permanent life-partnership at the time of birth.
· Consents to be identified as the child’s father, successfully applies to be identified as the child’s father, or pays damages in terms of customary law.
· Has contributed or has attempted in good faith to contribute to the child’s upbringing for a reasonable period.
· Has contributed or has tried in good faith to contribute towards maintenance expenses for the child for a reasonable period.
If you as a father feel that you are still not given fair access to your children on Father’s Day, you should seek legal counsel to determine what your rights and responsibilities are.
Shared custody and holidays
For divorced or separated couples holidays can be challenging especially when consensus lacks as to whose turn it is to spend time with the kids. Sadly it’s the children who often end up in the middle of it all.
It is therefore vital to ensure that a parental plan is agreed upon at the time of divorce or separation.
“Whilst being aware of your rights are important, for divorced or separated fathers, it’s important to first think about your children’s rights, happiness and emotional needs. Sometimes you will need to set aside your own emotions, which may be difficult when you and your ex are in disagreement,” says Boda.
The key is clear-headed communication that places your child first whilst also considering your ex-partner’s rights. Such an approach will go a long way in avoiding friction and unnecessary court battles.
Here are some tips to make shared custody a little simpler:
· If your family celebrates these holidays, if possible let your children spend Father’s Day with the dad especially if the mom spent Mother’s Day with them. Ensure that your children are dropped off and fetched on time.
· You could have an early holiday or birthday lunch with the children to allow the other parent to also spend time with them on special days.
· Don’t make your children feel guilty for not spending time with you.
Children should also not be left in the dark when it comes to making any decisions. They might even remind you that this holiday it’s dad’s turn to be with them. Likewise it’s also as important to remind them that a day such as Father’s Day is around the corner and that they will be spending time with him.
The duty of child maintenance
“After separation each partner has the legal and moral duty to help pay for the basic needs of a child. This duty lasts until the child becomes self-supporting,” says Boda.
But this is not always the case. Often a partner either cannot or refuses to pay maintenance. If this is the case, then it’s always better to keep the lines of communication open and to be considerate when it comes to your ex-partner’s situation.
If your partner refuses to pay maintenance, he or she could be guilty of a crime punishable by a fine or imprisonment of up to one year. Yet, if the partner claims that he or she lacks the money to pay maintenance, he or she must show that this is not because of unwillingness to work or due to misconduct.
“Of course, laying charges against a partner for non-payment of maintenance is a last desperate resort – after all, someone who is in jail can’t pay maintenance and having a criminal record will harm his or her employability,” adds Boda.
Ultimately, being a good dad means both talking the talk and walking the walk. Smart dads know this. Show your children what a good dad you are and that you are serious about the responsibilities of fatherhood. Besides being aware of your rights, this advice will go a long way in securing priceless time spent with your children.
Happy Father’s Day!
Anyone seeking advice or assistance with any legal or parental issues, should visit www.legalandtax.co.za, or call 0860 LTS LTS (587 587) or email info@legalandtax.co.za. Also follow us @LegalandTax on Twitter or join us on Facebook to keep up with Legal & Tax news and views.
