Many South Africans still believe that if you’re not married—or if you’re divorced—you may have limited rights to your children. But this is not true. The law recognises the importance of both parents in a child’s life, and there are legal protections in place to ensure your role as a parent is recognised, regardless of your marital status.

Understanding Your Parental Rights

Parental rights and responsibilities are regulated by the Children’s Act 38 of 2005. Married parents automatically receive these rights by the nature of their living arrangements, but for unmarried or separated parents, this may be more difficult. Here’s what the law says about your rights as a parent:

Caring

The right to provide a home for your child and to supervise their daily life.

Contact

The right to maintain a personal relationship with your child, including spending time with them and communicating regularly.

Guardianship

The right to make important decisions on behalf of your child—such as applying for a passport, consenting to medical procedures, or managing their property and legal affairs.

Maintenance

To contribute to the maintenance of the child.

How Unmarried Parents Can Access These Rights

If you’re an unmarried biological father, you automatically gain full parental rights and responsibilities if any of the following apply:

• You were living with the child’s mother in a permanent life partnership at the time of birth
• You agreed to be identified as the child’s father when they were born
• You applied successfully to be identified as the child’s father (this can involve a paternity test or a court order compelling the mother to add your name to the birth certificate)
• Or pay damages in terms of customary law
• You have contributed—or tried to contribute—to your child’s upbringing for a reasonable period
• You have contributed—or tried to contribute—to your child’s financial maintenance

Even if there is conflict or disagreement, your rights are protected by law. If you are being denied access to your child, you can apply for care and/or contact rights through the Children’s Court. Applications for guardianship must be made through the High Court.

The Children’s Act states in Section 19: Parental responsibilities and rights of mothers

1. The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.
2. If
   1. the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
   2. the biological father of the child does not have guardianship in respect of the child,
   3. the guardian of the child's biological mother is also the guardian of the child.
3. This section does not apply in respect of a child who is the subject of a surrogacy agreement

Section 20: Parental responsibilities and rights of married fathers

The biological father of a child has full parental responsibilities and rights in respect of the child

1. if he is married to the child's mother; or
2. if he was married to the child's mother at
   1. the time of the child's conception;
   2. the time of the child's birth; or
   3. any time between the child's conception and birth.

Understanding Parental Alienation

Parental alienation happens when one parent—whether intentionally or unintentionally—damages or interferes with the relationship between the child and the other parent. This is often done through manipulation, negative comments, or limiting contact, and it can cause long-term emotional harm to the child.

What Does Parental Alienation Look Like?

• A child suddenly refuses to visit or speak to the other parent without a valid reason
• One parent constantly badmouths or undermines the other in front of the child
• Blocking or limiting contact, phone calls, or visits
• Telling the child inappropriate details about the adult conflict or court matters
• Encouraging the child to “choose sides”

Why Is It Harmful?

Parental alienation is not just a legal issue, it’s an emotional one. It disrupts a child’s sense of security and identity and can lead to anxiety, guilt, depression, and trust issues later in life. It also deprives a child of a meaningful relationship with a loving parent.

What Can You Do About It?

If you suspect parental alienation:

• Keep records of communication, visitation refusals, and concerning behaviour
• Stay calm and don’t retaliate or involve the child in the conflict
• Seek legal advice to understand your options
• Apply to the Children’s Court for care or contact rights if necessary
• Speak to a psychologist or social worker who can assess the situation and offer support

Parental alienation may also be raised in court if it affects the child’s well-being. The court will always act in the best interests of the child.

Resolve, Don’t Battle: The Role of Mediation

Not all parenting disputes need to end up in a courtroom. Mediation is a constructive, cost-effective way to resolve conflict—especially when it comes to parenting plans, access rights, and communication breakdowns.

What Is Mediation?

Mediation is a voluntary process where a neutral third party helps parents reach a mutual agreement. The goal is to create practical, child-focused solutions without needing a judge to decide for you.

Why Mediation Works:

• It's less stressful and more private than court
• It gives both parents a voice
• It focuses on the child’s needs, not adult conflict
• It often leads to longer-lasting agreements
• It’s faster and more affordable than litigation

You can arrange private mediation or be referred by a court or the Office of the Family Advocate.

When You Need More Support: Family Advocates and the Courts

When parents can’t agree, or when a child’s best interests are at risk, South African law offers structured support through the Family Advocate, the Children’s Court, and the High Court.

The Family Advocate

The Office of the Family Advocate is a free government service that investigates parental disputes and provides recommendations to the court. Their role includes:

• Assisting with parenting plans
• Investigating care and contact disputes
• Interviewing both parents and the child
• Making recommendations to the court based on the child’s best interests

The Family Advocate’s report often guides the final court ruling, especially in difficult or high-conflict cases.

Children’s Court

You can approach the Children’s Court in your area to apply for:

• Care and contact orders
• Supervised visitation
• Amendments to existing parenting arrangements
• Protection if your rights as a parent are being denied

You do not need a lawyer to appear in the Children’s Court, although legal advice is recommended.

The High Court

If guardianship is in dispute, or if one parent wants to relocate the child outside South Africa, the matter must go to the High Court. These decisions require a higher level of legal intervention due to their potential impact on the child’s future.

Parental Rights and Responsibilities Must Be Balanced With the Child’s Best Interests

South African law does not automatically side with mothers or fathers—it centres on what’s best for the child. That includes:

• Maintaining a strong relationship with both parents
• Having a stable, loving home
• Being shielded from adult conflict

At Legal&Tax, we support your right to parent—whether you’re a mom, a dad, or a co-parent figuring it out. We're here to help you take action when things go wrong, and to guide you when you need clarity.

Regarding best interests of the child standard, Section 7 of the Children’s Act states

1. Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
   1. the nature of the personal relationship between-
      1. the child and the parents, or any specific parent; and
      2. the child and any other care-giver or person relevant in those circumstances;
   2. the attitude of the parents, or any specific parent, towards-
      1. the child; and
      2. the exercise of parental responsibilities and rights in respect of the child;
   3. the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
   4. the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from-
      1. both or either of the parents; or
      2. any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
   5. the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
   6. the need for the child-
      1. to remain in the care of his or her parent, family and extended family; and
      2. to maintain a connection with his or her family, extended family, culture or tradition;
   7. the child's-
      1. age, maturity and stage of development;
      2. gender;
      3. background; and
      4. any other relevant characteristics of the child;
   8. the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;
   9. any disability that a child may have;
   10. any chronic illness from which a child may suffer;
   11. the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
   12. the need to protect the child from any physical or psychological harm that may be caused by-
       1. subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
       2. exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
   13. any family violence involving the child or a family member of the child; and
   14. which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

Support for Parents

We understand that parenting isn’t always easy—especially when facing financial pressure. If you’re struggling to meet your child’s basic needs, you may be eligible for a Child Support Grant.

This monthly grant is available to adults caring for children under 18 (born after 31 December 1994) and earning R3 300 or less per month. Applications are free and can be made at your nearest SASSA office.

Parenting Through Pain: The Emotional Side of Co-Parenting

Parenting after separation or divorce is never easy. You may be feeling angry, disappointed, shut out—or even like you're starting from scratch. These emotions are valid. But your child still needs you.

No matter what happened in the relationship, your role as a parent remains sacred. You are still their anchor, protector, guide, and source of love. Even if you only see them on weekends or speak over the phone, showing up consistently builds trust and security for your child.

Tip: Keep your communication with your child consistent, positive, and reassuring. Don’t badmouth the other parent—even when emotions run high. Your child deserves the freedom to love both parents without guilt.

Being present emotionally is as important as being present physically. Talk, listen, show up. Over time, this matters more than any court order.

Parenting Plans: Clarity Builds Confidence

A parenting plan is a written agreement that outlines how separated or unmarried parents will share responsibilities and time with their child. It’s not just for high-conflict families—it’s for any parents who want to avoid future confusion and do what’s best for their child.

A good parenting plan answers questions like:

• Where will the child live, and when will they see each parent?
• Who decides on education, religion, health care and discipline?
• How will birthdays, holidays and school holidays be shared?
• How will parents communicate? What happens if there’s a disagreement?

You can create your own plan with the help of a mediator or lawyer. If approved by the Family Advocate or the court, the plan becomes legally binding.

Did you know? Legal&Tax can help you draft, review, or amend your parenting plan to suit your needs and protect your rights.

Your Child Has a Voice Too

Under Section 10 of the Children’s Act, children have the right to be heard in matters that affect their lives—especially when it comes to care and contact decisions.

If a child is mature enough, a court or the Family Advocate will take their views into account when deciding where the child will live, how often they’ll see each parent, and other important matters. This doesn’t mean the child chooses, but their voice matters.

Courts always prioritise the best interests of the child, which includes their emotional wellbeing, safety, and sense of stability.

When to Get Urgent Help

There are times when a parenting dispute crosses the line and becomes a legal or safety issue. If any of the following apply to your situation, get help immediately:

• Your child is being physically, emotionally or verbally abused
• The other parent refuses to return your child after agreed visits
• Your child is being neglected or left in unsafe environments
• You are being threatened with losing access to your child or the child being moved without consent
• You are being harassed or intimidated

You can approach the Children’s Court or Family Advocate for protection and to urgently assert your rights. In high-risk cases, contact Legal&Tax immediately for legal intervention.

What You Can Do Right Now

Take the first step toward reclaiming your parenting power:

✅Ask for help – Our legal team is ready to listen and advise
✅Draft or update a parenting plan
✅Apply to the Children’s Court for care or contact orders
✅Engage a mediator or contact the Family Advocate
✅Understand and assert your rights under the Children’s Act
✅Get assistance applying for a Child Support Grant

A primary caregiver is the person who takes the main day-to-day responsibility for looking after a child’s physical, emotional, educational, and social needs.

In simple terms:

The primary caregiver is the parent or guardian the child lives with most of the time, and who makes the majority of decisions about the child’s daily routine, such as meals, school, health care, and emotional support.

In the context of South African law:

Under the Children’s Act 38 of 2005, South African courts don’t automatically label one parent as a “primary caregiver.” Instead, they look at what is in the best interests of the child.

However, in practice, one parent often:

• Spends more time with the child
• Provides the main home
• Handles daily care and nurturing

This person may be referred to informally as the primary caregiver or may be awarded primary residence of the child in a parenting plan or court order.

The primary caregiver typically:

• Has the child in their care most of the time
• Makes day-to-day decisions for the child
• Communicates with schools, doctors, and other service providers
• Organises routines, meals, clothing, and discipline
• Provides emotional comfort and support

Both parents can still share guardianship and make joint decisions on major matters (e.g. medical procedures, school choice, relocation), even if one parent is the primary caregiver.

Courts will always prioritise the best interests of the child, and not parental titles or gender.

If you're putting together a parenting plan, it's important to define:

• Where the child will live primarily
• What contact the other parent will have
• How major decisions will be made

Need Help? We’re With You Every Step of the Way

Whether you’re struggling with access, being kept out of your child’s life, or just unsure of your rights—you don’t have to face it alone. Legal&Tax is here to guide you, support you, and protect what matters most: your relationship with your child.

💬 WhatsApp: +27 (71) 526 8527 (type "AI" to start chatting) or visit www.askmyailawyer.com

☎️ Call: 0860 587 587

✉️Email: info@legalandtax.co.za

Did You Know?

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