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The biological mother of a child automatically obtains full rights and responsibilities of her child from the time of the child’s birth. However, the same is not said for the father. The biological father’s rights and responsibilities are determined by his marital status with the mother.      

The Children’s Act 38 of 2005 (the Act) informs and governs the father’s rights and responsibility towards his child.

Section 20 gives the father automatic rights and responsibilities if he is married to the mother, or if he was married to the mother at the time  of the child’s conception, child’s birth or anytime between the child’s conception and birth.

An unmarried father, however, does not have parental rights and responsibilities of his child unless the terms of Section 21 of the Act are met. In terms of this section, the unmarried father must have, at the time of the child’s birth, lived with the mother in a permanent life-partnership or if he was not living with the mother, must have consented to be identified as the child’s father, or contributed to the child’s upbringing (or must have attempted in good faith) or pays child’s maintenance(or attempts to do so in good faith).


A father’s responsibilities (responsibility of the child’s parents) include to care for the child’s well being and needs, maintain contact with the child, act as a guardian of the child to support and manage the child’s interests administer the child’s legal matters, to contribute towards the child’s maintenance and provide for the child’s financial support.

Parental rights for the mother include custody of the child, meaning having charge of the physical control over the child and supervision of their daily life, the right to make major decisions about the child, and the right to consent over matters involving the child.

For a father who has rights and responsibilities, his rights are to have access and contact with the child,   to make decisions towards the child’s upbringing, and apply for joint custody with the mother.


The simplest step for a father to obtain full rights and responsibilities is by agreement with the mother through a parenting plan, which is then registered with the Family Advocate’s Office and/or making an order of  the High Court or the Children’s Court.

Where the parents cannot agree, the father can make an application with the High Court.  The court will first consider the best interest of the child,  the father child-relationship, the level of commitment of the father towards the child’s financial stability and upbringing, and other factors considered by the court to be important.

The biological father of the child has a legal duty to maintain his child even if he doesn’t have full access to the child, and his rights are compromised. The law separates the rights and responsibilities and each stand independently.

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