Can I get shared custody of my son if I was not named as the father on his birth certificate?

Can I get shared custody of my son if I was not named as the father on his birth certificate?

The short answer

Yes, but only with the mother’s permission can an application be made to the High Court.

The whole question

Dear Athalie

My girlfriend and I weren’t together when she fell pregnant, but we were always on good terms. Her family came to mine and insisted that we don’t pay damages, so we agreed.

After the baby was born, I was not listed as the father on his birth certificate, but this did not stop me from being 100% present in his life. His mother and I entered a relationship shortly after our son’s birth, and things are going well, but I’m worried that if something went wrong down the line I wouldn’t have access to him.

Can I change his surname to mine and gain parental rights?

The long answer

Let’s start with the changing of your son’s surname to yours:

The law under which a surname can be changed is the Births and Deaths Registration Act of 1992. The Home Affairs website says that this “provides for the rectification, amplification and amendment of the personal information of individuals as contained in the National Population Register of South Africa (NPR)”.

But as your son’s mother is taking parental responsibility for your son, you would need her consent to change your son’s surname to yours. Home Affairs will not allow the change of a minor child’s surname without the consent of both parents. The Home Affairs website says that applications must be on a duly completed Form BI-193 and that both the natural parents’ written consent is required as well as a good and sufficient reason, in writing, for the change.

And of course, when your son turns 18, he can decide which surname he wants to have, without having to ask permission from his parents.

To go on to the custody question:

The new Children’s Act that came into force in 2010 provides for automatic parental responsibilities and rights for unmarried fathers who meet certain criteria.

Prof Carmel R Matthias, in a 2017 article for Stellenbosch University’s Social Work/Maatskaplike Werk journal, explains that the Act also allows for suspension, restriction or termination of these responsibilities and rights.

There are four components of parental responsibilities and rights:

  1. Care of a child

  2. Contact with a child

  3. Acting as a guardian of a child

  4. Contributing to the maintenance of a child (section 18(2)).

Matthias explains that a parent or any other person can either have full responsibilities and rights (care, contact, guardianship and maintenance) or only specific responsibilities and rights in respect of a child. Therefore, an unmarried father could have all four responsibilities and rights, or just some of them.

There are two different ways in which a biological unmarried father can acquire full automatic responsibilities and rights, she says. Firstly, he must be living with the mother in a permanent life partnership at the time of the child’s birth (section 21(1)(a)). Alternatively, an unmarried father not living in a permanent life partnership with the mother must satisfy the following criteria:

  1. he consents to be identified as the father or pays damages in terms of customary law, and

  2. he contributes to, or has attempted to contribute to, the child’s upbringing for a reasonable period and he contributes to maintenance and expenses of the child for a reasonable period (section 21(b)).

Mathias says that an unmarried father who does not satisfy the criteria above for automatic acquisition of parental responsibilities and rights can acquire either full or specific parental responsibilities and rights through agreement with the mother.

The parental responsibilities and rights agreement must be in the prescribed format, and it will only take effect once it is registered with the family advocate or is made an order of the High Court or children’s court.

An application for guardianship (section 24 of the Act) can only be made to the High Court. The High court must take into account:

“(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child;

(c) the degree of commitment that the applicant has shown towards the child”.

Section 28(3) of the Act provides a list of the persons who may apply for the termination, extension, suspension or restriction of parental responsibilities and rights. Firstly, a co-holder of responsibilities and rights may apply (section 28(3)(a)). However, co-holders are first required to attempt to agree on a parenting plan “before seeking the intervention of the court” (section 33(2)). The development of a parenting plan is seen as the first attempt to resolve problems before involving the courts. Parenting plans must comply with the best interests of the child (section 33(4)). The Act further provides that parenting plans must be developed with the assistance of a family advocate, social worker or psychologist.

In a 2015 court case (GM v KI), Judge Fisher ruled that responsibilities and rights must be seen together: that a parent could not have responsibilities without rights, and vice versa.

If there is a dispute between the parents about whether the father has met the requirements of section 21(1)(b), the dispute must be referred to mediation. If the mediation is unsuccessful, either the father or mother can approach the High Court to decide on the matter.

Thus, the Children’s Act provides a framework for resolving disputes about co-parenting. Parents may consult the office of the Family Advocate if there is a dispute regarding contact with or care of a child, or if they want to draw up a parental rights and responsibilities agreement, register a parental rights and responsibilities agreement, or amend or terminate a previous parental rights and responsibilities agreement.  The Family Advocate is a legal officer employed by the Department of Justice and acts as legal representative of the children. The Family Advocate provides service to the public free of charge.

In summary, all matters affecting minor children fall under the Children’s Act 38 of 2005. In terms of this Act, the court must see that the best interests of the child are served in whatever decisions the court comes to with regard to changing parental rights. The Act says that the voice of the child must also be heard in any decision affecting the child’s future. So, even though a minor child does not have the legal capacity to decide which parent he would prefer to live with, the court will want to hear what the child feels and will take this into consideration when awarding custody to one of the parents.

Once the child has turned 18, the child will be able to choose whether they would like to live with the parent who does not have custody.

Wishing you the best,