A Father’s right to fight?
With divorce rates higher than ever before, the question inevitably becomes whether the battle for custody is an equal playing field. By Twane Twinx Humphreys
Looking back at the application of law in our legal system previously, one would assume that the mother holds more rights to the child than the father, due to the fact that the standard of proving incompetence in a mother was much higher, in my opinion, that that of a father. This may be due to the fact that the courts views mothers as natural nurturers and care givers of the child – as the mother carried, birthed, breastfed and is the primary nurturing agent in the child’s life up until they are able to take care for themselves – making them the more viable parent. It is for this reason that courts seemed to side with the mother in custody battles, however, the question is whether, in today’s society, the theory of the natural nurturer has been debunked?
Fatherhood and families come in all shapes and sizes, and it is important for fathers to understand their rights and how these rights have changed and progressed. If we start by merely looking at the statistical rise in cases where fathers have been awarded full custody of their children, we can see a slow rise in these numbers. According to Statistics SA the number of fathers with full custody has risen to 21.3%. Although this is still significantly lower than the number of mothers obtaining full custody (42%) it demonstrates that while the process can be challenging, it’s not impossible.
What’s imperative to note is that most judges try to ensure that the decision they make is in the best interest of the child. Should a mother have primary custody over a minor child whilst the father has parental rights and responsibilities over such child? Can the father obtain primary care (or custody) over such child? As the law is designed to look at the best interest of the child above all else, the father would have to prove that it would be in the child’s best interest to be placed with the father rather than the mother. The court must take certain criteria into account such as; the relationship between the applicant and the child, and any other relevant person and the child; the degree of commitment that the applicant has shown towards the child; the extent to which the applicant has contributed to expenses in connection with the birth and maintenance of the child; and any other fact that should, in the opinion of the court, be taken into account.
Interestingly in September 2021, the Constitutional Court ruled that a section of the Registration of Births and Deaths Act is unconstitutional. This means unmarried fathers can now register their children, without the mother’s consent or knowledge, at the Department of Home Affairs, which represents a progressive change on behalf of fathers’ rights.
This progression in the corridors of law is a sure sign that the playing field is being leveled for fathers in disputes concerning their children.