Fathers' Rights

Fathers' Rights

Built upon our passion for the health and welfare of the family, JLS Attorneys works to provide highly effective legal representation for fathers, supporting their rights through our core practice areas which encompass the full range of family law legal services including, family & paternity law, matrimonial litigation, financial discovery & analysis, tax & retirement analysis, negotiation & mediation, child custody & visitation rights.

This is made possible by the legal changes which includes laws protecting the rights of fathers of children born in and out of wedlock.

In terms of the Children’s Act of 2005, both parents (with certain exceptions) have full parental rights and responsibilities in relation to a child. If there is a dispute regarding that, then the father may have to make an application to the High Court confirming his responsibilities and rights.

The Children’s Act No. 38 of 2005

This Act gives natural unmarried fathers - including those whose marriages are not recognised by the state, for example Muslim and Hindu marriages - the statutory right to go to court to ask for access, custody or guardianship of their children. The interests of the children are seen as most important in deciding on custody or access to children. The Act aims to provide a holistic approach to the rights of all children.

This Act arose to enact changes that were in line with the goals of the fathers' rights movement. The fathers' rights movement arose in response to the perception that fathers were not being given equal treatment in child custody litigation. Fathers' advocacy groups typically focus upon some or all of the following goals:

* Obtaining recognition that a "traditional" division of parental roles during a marriage does not necessarily mean that the father should not be considered as a custodian following divorce;

* Children are best served by being in the care of both parents, and thus there should be a legal presumption of joint physical custody and equal parenting time following divorce;

* Fathers are at a disadvantage throughout the entire custody litigation process.

Fathers' rights groups assert that changes of this nature will create a family court environment where both parents are treated fairly and equally, and diminish the effects of legislation and, in some cases, of judicial bias which favours the mother.

Fathers' rights groups also typically point to studies which show that the absence of a father from a child's life can lead to a wide variety of negative behavioural and educational consequences.

In South Africa Fathers 4 Justice is one such group. Their web site is http://www.fathers-4-justice.co.za/

Fraser v Children's Court, Pretoria North and other (read the judgment)

Lawrie Fraser was the unmarried father of a child put up for adoption by his former partner. The adoption application was granted by the Children's Court, but Fraser, who wanted to be able to adopt the child himself, applied to have it set aside.

The case concerned section 18(4)(d) of the Child Care Act of 1983, which required a Children's Court to obtain the consent of both parents before issuing an order for the adoption of a legitimate child, but dispensed with the need to obtain a father's consent for the adoption of his child born out of wedlock.

Legitimate children are those born of a marriage recognised by the state.

The Court held that this violated the right to equality. It discriminated against fathers in marriages contracted according to the rites of religions such as Islam and Hinduism, which were not recognised as marriages by the law.

But the Court said more consideration was needed before the section could be remedied and gave parliament two years to correct the defect.

The Children’s Act has now been enacted and provides for equal rights and responsibilities for both parents and eliminates the fears and prejudices that once were previously evidence in the legal system.

JLS Attorneys is a full service divorce and family law service representing clients in all types of divorce and family law matters.


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