Mc Naught & Co
Are Mothers’ rights more equal than Fathers’?
Parental Responsibilities and Rights are under the spotlight today. The Children’s Act 38 of 2005 has attempted to focus our society and courts’ attention on the interests of the child which are paramount in any custody or contact dispute between parents.
Often the parties hide behind the blanket phrase the “best interests of the child” to give their own twisted interpretation as to what would be best. Fathers’ rights have traditionally been disregarded in favour of the mother, and children have frequently been pawns in a battle between the parents.
In recent years the concept of “parental alienation” has come to the fore as South Africa’s divorced and unmarried fathers have had to battle to maintain contact with their children, or to have contact at all.
Professor Weshal Domingo, the head of law at Wits University and a family law expert, and her colleague, law lecturer Prinslean Mahery, write how, despite South Africa’s Childrens Act framework, which “created a shift from the idea of parental power over a child to the notion that parents have parental responsibilities and rights”, this hasn’t fundamentally changed the constant battle that parents and other interested parties have over children.
The “maternal preference and tender years” doctrine has been abandoned by the country’s courts to an extent. The biological father who was either married to the mother, or who has accepted paternity, even though unmarried, has full parental responsibilities and rights.The unmarried father’s right to equality is strengthened and children are seen as having rights to maintain contact with their father.
The best interests of the child are however always paramount and in many cases the courts rely on expert evidence to assist in reaching a finding that will serve the bests interests of the children concerned. Sadly many Judges still favour the mother, but more and more are mandating mediation by couples who are caught up in a battle when exercising their parental rights and responsibiities.
If you are seeking to draw up a Parental Responsibilities and Rights or Parenting Plan, or require mediation in settling issues of contact or maintenance, Mc Naught and Company can help in this regard.
References: The Childrens’ Act 38 of 2005 and The Saturday Star.