Section 18 of the Children’s Act introduces Parental Rights and is defined as including “the responsibility and the right” to care for the child, to maintain contact with the child, to act as his or her guardian and to contribute to the child’s maintenance. “Care” replaces “custody” and “contact” replaces “access”.

Both parents of a child born of the marriage automatically obtain Parental Responsibilities and Rights. In the case of extra-marital children parental responsibilities and rights vest automatically in the mother only. The father automatically obtains these responsibilities and rights if:
a) at the time of the child’s birth, the father and mother are cohabiting in a “permanent life-partnership”;
b) he consents to being identified as the father, pays damages at customary law, or contributes or attempts in good faith to contribute to the child’s “upbringing” or maintenance for a “reasonable period”.

Any dispute between the parents about whether any of these conditions have been fulfilled must be referred for mediation to a family advocate, social worker, social-service professional or “any other suitably qualified person”. Any party to the dispute may then have the outcome of the mediation reviewed by a court. The father of an extra-marital child also acquires full parental responsibilities and rights if he marries the mother any time after the birth of their child.

Due to the high costs of litigation we seldom recommend that clients appoint an attorney to represent them in the maintenance court. However, this may be necessary depending on the facts of the case or if the other party has legal representation themselves. To minimise the legal costs we prefer to guide clients in completing the forms correctly, to explain their rights and or obligations, and to explain the process to be followed to enforce their rights.