What are my rights as an unmarried father?

If you are an unmarried father, you have full parental responsibilities and rights automatically in either of two situations. The first is that you were living with the child's mother in a permanent life partnership when the child was born. The second is that, whether or not you ever lived together, you consent to be identified as the child's father, and you contribute or have tried in good faith to contribute to the child's upbringing and towards the child's expenses. The Children's Act 38 of 2005 sets these tests, and if you meet either of them your rights are the same as those of a married father. The mother's consent is not required, and she cannot take those rights away by herself.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

If you do not meet either test, you are not without options. You can enter into a written parental responsibilities and rights agreement with the mother, or you can apply to a court to be given rights. And no matter which group you fall into, you have a duty to maintain the child and the child has a right to be maintained by you.

What "parental responsibilities and rights" actually means

The law bundles four things together:

• Care. Providing the child with a home, daily support and supervision. What people used to call custody.
• Contact. Maintaining a personal relationship with the child, including visits, calls and messages. What people used to call access.
• Guardianship. Administering the child's property and consenting to certain decisions, such as a passport, leaving the country, marriage and adoption.
• Maintenance. Contributing to the child's costs in proportion to your means.

When you acquire full rights, you become a co-holder of all four with the mother. Co-holders must consult each other on major decisions, such as schooling, a serious medical procedure or a move that will affect contact. Neither of you may simply override the other.

How the two automatic routes work

Route one: the permanent life partnership. If you and the mother were living together as a couple, in a settled relationship, at the time of the birth, you have full rights from birth. The law does not set a number of years. It requires a genuine, ongoing partnership rather than a brief stay or an occasional overnight. Proof might be a shared lease, joint accounts, photographs, or the evidence of family and neighbours.

Route two: identification and contribution. If you were not living together, you still acquire full rights if you meet three requirements together. You consent to being identified as the father, which usually means your name on the birth certificate or a formal acknowledgement at Home Affairs. You contribute, or have tried in good faith to contribute, to the child's upbringing for a reasonable period. And you contribute, or have tried in good faith to contribute, to the child's expenses for a reasonable period. "Tried in good faith" matters. A father who has been blocked from seeing the child but has kept sending money, gifts and messages is on much stronger ground than a father who stopped trying.

These rights arise by operation of law. You do not apply for them. If the mother disputes that you meet the tests, the dispute goes to the Children's Court, to the Office of the Family Advocate for mediation, or to the High Court.

A worked example

Take a made-up family. Sipho and Lerato were never married and never lived together. Their son Kabelo is three. Sipho's name is on the birth certificate. He has paid R2 500 a month since Kabelo was born and has fetched him every second weekend. The figures are illustrative only.

Lerato starts a new relationship and tells Sipho that he will no longer see Kabelo. She says that as an unmarried father he has no rights.

She is wrong. Sipho has consented to be identified as the father, has contributed to Kabelo's upbringing through regular contact and care, and has contributed to his expenses for three years. He acquired full parental responsibilities and rights automatically. Lerato cannot end his contact by herself.

Sipho's practical route is to ask the Office of the Family Advocate to mediate, and to propose a written parenting plan setting out the weekends, holidays and calls. If Lerato refuses to attend or refuses to agree, Sipho applies to the Children's Court, which is free and does not require an attorney, for an order defining his contact. Throughout, he keeps paying the R2 500. Stopping would harm Kabelo and hand Lerato an argument.

Contrast Sipho with Mandla, the father of Lerato's older child. Mandla has not seen that child in four years and has never paid. He has not met the contribution test, so he has no automatic rights. He can apply to a court, but the court will weigh his absence heavily when it decides what is in the child's best interests. He will also still owe maintenance, and can be taken to the Maintenance Court for it.

What to do this week

1. Check the child's birth certificate. If you are not named, go to Home Affairs and ask about acknowledging paternity and adding your details.
2. Start paying a regular, traceable amount towards the child, with a reference on every payment. If there is no order yet, use the maintenance estimator to work out a reasonable figure. It is illustrative only.
3. Keep a contact diary: every visit, call, message and gift, with dates.
4. Write to the mother, calmly, proposing a schedule. Keep a copy.
5. Contact the Office of the Family Advocate in your area and ask about mediation.
6. If contact is being refused, go to the Children's Court and ask the clerk how to apply.

Documents to gather

• your identity document and the child's birth certificate
• proof of every payment you have made, with bank statements
• proof of contact: photographs, messages, school or clinic records that name you
• proof that you lived together at the birth, if you did: a lease, utility bills, affidavits from family
• any existing court order, parenting plan or written agreement
• any messages in which the mother refuses contact

A realistic timeline

Mediation at the Family Advocate can usually be arranged within a few weeks, and if it works you can have a signed parenting plan within one or two months. A Children's Court application takes longer. Expect a first appearance a month or two after you apply, an investigation and report where the court asks for one, and a final order several months after that. A High Court application with an attorney can be launched quickly but costs far more, and if it is opposed it will not be faster.

Common mistakes and what they cost

Stopping maintenance because contact is refused. Maintenance and contact are separate duties. Stopping payment creates arrears, can lead to a garnishee order or prosecution, and weakens your claim to be a committed father.

Taking the child without agreement. Keeping the child after a weekend visit, or collecting them from school without arrangement, invites an urgent court application against you and an accusation of abduction. Courts remember it.

Signing away your rights informally. A message saying "fine, I give up" can be produced in court years later. Do not write it.

Waiting. Every year without contact makes it harder to argue that a relationship exists and that reinstating it is in the child's interests.

Going to the High Court first. For most contact and care disputes the Children's Court gives the same relief for free.

What the court weighs

Every decision about a child is measured against the child's best interests. The Children's Act 38 of 2005 gives a long list of factors, which in plain words come down to these questions. What relationship does the child have with each parent? How has each parent behaved towards the child and towards the other parent? What does the child need emotionally, physically and educationally, and who can provide it? What does the child, depending on age and maturity, want? Is there any history of violence or abuse? What will disrupt the child's life least?

The court is not asking who is the better person. It is asking what arrangement will serve this child. A father with a modest income who shows up every fortnight is often in a stronger position than one with money who appears once a year.

If you cannot afford an attorney

You do not need one for most of this. The Children's Court is free and is designed for parents without lawyers. The Office of the Family Advocate mediates and investigates for free, and its report carries real weight. The Maintenance Court handles maintenance for free. Legal Aid South Africa on 0800 110 110 applies a means test and can represent you in the Children's Court or the High Court if you qualify. University law clinics in the larger centres help for free. If you are considering a private attorney, see what family law costs first.

Where there has been domestic violence in the relationship, in either direction, expect it to be central to what the court decides. A parent who needs protection can apply for a protection order at the same Magistrates' Court, and the GBV Command Centre on 0800 428 428 can help. In an emergency call SAPS on 10111.

Frequently asked questions

Fathers often ask whether they need the mother's permission to be on the birth certificate. You can be registered as the father with the mother's consent at the time of registration, or later through an acknowledgement of paternity process at Home Affairs. If she disputes paternity, a court can order a DNA test.

Many ask whether being on the birth certificate alone gives full rights. It does not, on its own. It satisfies the identification part of the test. You still need to have contributed, or tried in good faith to contribute, to the child's upbringing and expenses.

Fathers who were living with the mother ask whether moving out later takes their rights away. It does not. Rights acquired at birth stay with you unless a court ends or limits them.

Fathers ask whether they can stop the mother taking the child overseas. If you are a co-guardian, your consent is required for a passport and for the child to leave the country, and a court can decide the dispute if you refuse. See can my ex relocate with our child without my consent.

Finally, fathers ask whether they can get full custody. In principle care can be given to either parent, and the answer depends on the child's best interests. See can a father get full custody in South Africa.