Unmarried Fathers’ Right to Access to their Children
Written by: Thokozani Dladla and Keneilwe Mokalane
In South Africa, fathers have the right to access and maintain a relationship with their children, whether they are married or not. The rights and responsibilities of parents without a parenting plan are outlined in the Children’s Act, which include the right to care, protection and involvement of both parents where it is in the child’s best interests. The Children’s Actencourages all separated parents to have a parenting plan in place.
Section 28 (2)of the Constitution of South Africa provides that “a child’s best interests are of paramount importance in every matter concerning that child”.
The Children’s Act is the primary legislation for childcare, protection and rights. It encourages separated parents to develop a parenting plan that sets out arrangementsregarding care, contact, provision, guardianship and maintenance for their children. These responsibilities and rights are not limited only to the parent with custody of the children,which, in most cases, are the mothers.
The rights and responsibilities of an unmarried father without custody of the child do not go unchecked. An unmarried father cannot withhold maintenance to enforce visitation. A father who does that is taking the law into their own hands. Likewise, a parent with custody, even if there is no parenting plan or court order in place, is not allowed to unilaterally withhold a child from the other. In the event where a parent with custody of the child unreasonably denies the other access, the aggrieved parent that has made a parental plan an order of court may approach the Court to enforce his right to access to the child. Under these circumstances, the parent that unreasonably denies the other access will be in violation of the court order and run a risk to be found guilty of contempt of court.
In 2024, the Pretoria High Court sentenced a mother to 12 months’ direct imprisonment for repeatedly defying two court orders that granted the father access to his child. The judge made it clear that the mother acted unreasonably by depriving the child of a relationship with the father.
In 2022, the aforementioned court, mother and maternal grandmother were sentenced to 30 days’ direct imprisonment, which was suspended on the condition that they comply with court orders allowing the father to contact his 7-year-old daughter. In the same year but at a different court, the Johannesburg High Court, a mother was handed a 30-day suspendedprison sentence after she refused to let her ex-husband see the children, kept them out of school and refused to let them communicate via phone.
The Commission for Gender Equality remains committed to promoting respect for gender equality. The growing number of disputes involving fathers being denied reasonable access to their children calls for greater public awareness, responsible co-parenting, and strict adherence to the law. Ultimately, every decision concerning a child must place the child’s best interest above parental conflict, recognising that children thrive when they are afforded the love, care and support of both parents whenever it is safe and appropriate.