Question 1:

Two years ago I fell pregnant with my boyfriend, we never lived together and we broke up shortly after finding out I was pregnant. He has never paid maintenance and only met his child once. He recently contacted me and asked to start seeing our son and for our son to sleepover at his place. What are my rights?

Answer:

As the mother of the child you automatically have full parental responsibilities and rights for your child whether you are married or unmarried. The father of the child if unmarried does not have automatic full parental responsibilities and rights and only acquires them in respect of the child-

  • if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
  • if he, regardless of whether he has lived or is living with the mother-
  • consents to be identified of successfully applies in terms of Section 26 of the Children’s Act to be identified as the child’s father or pays damages in terms of customary law;
  • contributes or has attempted in good faith to contribute to child’s upbringing for a reasonable period; and
  • contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

In your case as the father does comply with requirements above, he does not automatically have full responsibilities and rights for your child. The Children’s Act states that if there is a dispute between yourself and the father of the child then the matter must be referred for mediation.

During mediation, the mediator will help you draft a parental responsibilities and rights agreement.

Question 2:

My wife and I are getting divorced. She has threatened to keep the children away from me and said that I will not be allowed to see them. What are my rights to visitation to the children?

Answer:

In this case, you and your wife are co- holders of parental responsibilities and rights in respect of your children. If you and your are in conflict and cannot agree on the responsibilities and rights in respect of your children, then you will need to seek the assistance of the family advocate, social worker, psychologist or other suitably qualified person. They will assist you to mediate with your wife and will draft a parenting plan.

So what is the difference between a Parenting plan vs a Parental Responsibilities and Rights Agreement?

 To answer this question we first need to look at what parental responsibilities and rights are?

The Children’s Act, states that responsibilities and rights relating to a child are to:

·         Care for the child;

·         Maintain contact with the child;

·         To act as the guardian of the child; and

·         To contribute the the maintenance of the child.

What is a Parental Responsibilities and Rights Agreement?

This is an agreement where the mother of the child or any other person who has parental responsibilities and rights in respect of a child/ren enters into an agreement giving Consent to the acquisition of such parental responsibilities and rights by:

1) The biogical father of the child who does not have parental responsibilities and rights in respect of the child; or

2) Any other person having an interest in the care, well-being and development of the child.

What is a parenting plan?

This is an agreement where co-holders of parental responsibilities and rights in respect of child/ren agree on a plan setting out the exercise of their respective responsibilities and rights in respect of a child/ren

The parenting plan may set out the following:

  • where and with whom the child will live
  • maintenance of the child
  • contact between the child and any other person
  • The schooling of the child; and
  • Religion of the child

The difference between the parental responsibilities and rights agreement and parenting plan

A parental responsibilities and rights agreement is used to aquire parental responsibilities and rights by someone who already holds such rights consents to you obtaining such responsibilities and rights in respect of the child.

A parenting plan is used by holders of responsibilities and rights on how to govern how they will exercise these responsibilities and rights.

Are there any similarities between a Parental Responsibilities and Rights Agreement and Parenting Plan?

1) Both must be in writing and signed by the relevant parties

2) Both may either be registered with the family advocate or be made an order of court.

3) Both must be in the best interest of the children

4) Both may be amended or terminated only by an order of court.

If you would like assistance with drafting a Parenting Plan or Parental Responsibilities and Rights Agreement, contact us on 078 230 8737 or email us at admin@lawsonlegalservices.co.za

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