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Family and Divorce law in South Africa - A Comprehensive Guide
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Parents who abandon their children

11/8/2015

 
Dead beat fathers
​Parents who abandon their children

​It comes as no surprise that the deadbeat dad, the fully-grown man, who, having had his fun, abandons his responsibilities towards his children.

As South African family life changes, fatherhood is shifting in important and sometimes amazing ways.  Today, fathers who live with their children are taking a much more active role in caring for them and helping out around the house.

The ranks of stay-at-home fathers and single fathers have grown considerably in recent decades. At the same time, more and more children are growing up without a father in the home.

What one must never forget is that it is not really the parents who have rights it is the children who have the rights to have a meaningful relationship with both their parents. Parents have responsibilities to their children, these responsibilities are enshrined in law. The sad reality is that too many people flout these responsibilities and do not put their children first when a relationship ends. This means the children then become the pawns in a game to hurt the other person. Many fathers and mothers I have worked with know or have been subjected to terrible allegations of abuse and violence towards their former partners and their children all in the name of hindering them from seeing their children to hurt them. Sadly is it is always the children who lose out every time.

There are many real stories about children who have been “left” with their mother after a divorce or separation. Often these fathers abandon the family and leave all the responsibilities to the mother or her new partner to care for his children. I am in such a situation. I care for two lovely children who have been abandoned by their father who they have not seen for more than 8 years with no emotional support and no maintenance, for the past 8 years I raised them as my own and I am proud that they call me dad.

Research has found that serial fathers who leave their homes and go on to start a second family are the men most likely to lose contact with their children. More than 1 in 5 men in the UK who live with second families never meet their children born during earlier relationships, according to research. Less than 1 in 12 fathers in the survey said that they see their children from their first family every day and nearly one third said they do not have a close relationship with them. According to the survey, 129,000 fathers did not have any contact with their children and 300,000 did not pay any maintenance to their former families. The study underlined concerns over the impact on children in single-parent families over the lack of men in their lives. In the UK a million children live in ‘men deserts’, in families without fathers and in neighbourhoods and schools where they rarely meet an adult male. Another survey found that nearly one million men have children they do not live with, around one in 20 of all fathers.
But it is not only dads who flout their responsibility towards their children since studies had shown that about the same percentage of mothers who did not live with their children paid all the child maintenance they owed as dads who didn’t. A recent research paper in the United States suggested that toddler dads are not quite as useless as the numbers and their popular image would imply.

According to a study, which appeared in the Journal of Marriage and Family, in the United States it was found that many fathers who didn’t pay child support in cash, nevertheless made a substantial contribution in kind towards their children. Almost 50% of the fathers in the study who were cash-poor nonetheless tried to contribute in other ways for example by providing baby products, food and clothing and school expenses.

Many people believe that a person can never lose their rights and responsibilities over a child. While a person may have parental rights and responsibilities in respect of a child, the extent of such rights and responsibilities may be altered if it is in the best interest of the child. Section 28 of the Children’s Act, 38 of 2005, provides that an application may be made for an order to terminate, extend, suspend or restrict the parental rights and responsibilities of a person.

Over time, the circumstances surrounding a child can change and may result in many of the child’s interests being neglected or improperly catered for. Occasionally the circumstances have materially transformed to such an extent that a person’s right or ability to properly give effect to their parental rights and responsibilities, in a manner that is in the best interests of the child, are doubtful.  It is therefore that the legislature introduced Section 28 of the Children’s Act.

An application in terms of Section 28 may be launched to suspend a person rights for a period;
  • Terminate any or all of a persons’ parental rights and responsibilities;
  • Extending any or all of a persons’ parental rights and responsibilities;
  • Limiting any or all of a person’s parental rights and responsibilities;
  • Structuring and circumscribing the exercise by a person of any or all of the parental responsibilities and rights that person has in respect of a child.
 
A Section 28 application may be launched by the following persons:
  • a co-holder of parental responsibilities and rights in respect of the child;
  • any other person having a sufficient interest in the care, protection, well-being or development of the child;
  • the child, acting with leave of the court,;
  • any other person in the child’s interest, acting with leave of the court;
  • the office of the family advocate; or
  • the representative of any interested organ of state.

It is also significant to note that where a Section 28 application is launched by a person who has no parental rights and responsibilities, that person can also launch an application in terms of Section 23 to have rights of contact and care granted to them.

 When considering an application in terms of Section 28 the court must take the following into account: 
  • the best interests of the child;
  • the relationship between the child and the person whose parental responsibilities and rights are being challenged;
  • the degree of commitment that the person has shown towards the child; and
  • any other fact that should, in the opinion of the court, be taken into account.

As every decision affecting a child must be made in the best interests of the child, it follows that the persons having the rights and responsibilities in respect of a child must exercise them in a manner that is in the child’s best interests. If they do not, the law provides for a mechanism to prevent any potential harm or neglect to the child’s best interests, among other things in the form of a Section 28 application to have a persons’ parental rights and responsibilities terminated, suspended, extended or limited.

Do not reproduce if you do not intend to be the best parent alive. 

Cristina
11/10/2015 06:34:24 pm

I am a single mother who was left with nothing when my 3 kids father left he left me with a bowen heart 3 kids to raise alone and debt of 1.7 million to pay ..He pays school fees and gives me 1000 for each child and has been paying that for three years now with no increase all one all all one tend now I all one tudo taking him to court for an increase in maintanance as life get expensive every year and he fails to attend the cour appearances all on et nd ml ready for two occasions I have to pay rent water and lights, car payment, dstv, medical aid , our domestic maid and so many o her things conserving the kids ..what I can't seem to understand is they say that the father has to maintain the life style of the kids even after he left ..really I did not have a sister and a mom to help me financially I would be on the streets right now ..what is happening to the law and how are they protecting the kids here when thier Father lives a very comfortable life but keeps saying he can't afford to give more maintanance ...what can I do as a mother because life is getting more expensive and very difficult for me as a single mother what am I surpose to do for my kids ..I am doing so much already ..how fair is this towards me as my kids mother ..I can only do so much ...losing faith in he system really...and so many divorced women are going through this husbands leave and carry on with thier lives with no responsibility and we are left with all the responsibility...so unfair....so tired what solution is there for mothers like me...really need help...need a solution not empty promises. .

tessa
11/10/2015 10:38:01 pm

I was in life partner with ma boyfriend for 5 years then left me with the two girls..his a foreign bt he don't want take their children to school.pls help i want him to pay for wat he did to me

Gman
11/11/2015 07:14:37 am

My ex and i got divorced in 2013 when she moved out and into a new place with my two boys who are now 8 and 13 yrs old. The ex had a close aunt die a few months ago and she went Into depression. I see my boys every morning when I pick then up from school and when I collect them and take them home in the evenings. They complain about their mom coming home and putting her headphones of her cellphone in and not spending any time with them. My 13 year old cooks as I taught him how to look after himself...for him and his brother and does the washing of clothes and the dishes. I have tried to sit down and explain to my ex she needs professional help as she is in depression and the boys are feeling it. She will scream and shout and swear at me in front of them. My boys and I have a very close bond and I can provide the security and love and attention which they are seriously lacking now. What can I do as a father watching my boys get neglected?
I pay maintenance every month their school fees and the medical bills. But I want them to live with me for awhile till their mother can sort her life out.
What can I do? Please help.

Jacqueline Spain
7/17/2016 12:28:48 pm

In 2004 I got married to an Irish national and we had a baby boy a year later. When I found out that my now ex-partner, who is separated from me (we are still legally married) was abusing our son sexually and had turned the violence he directed at me during the course of our marriage towards my son after the separation, I decided to remove both of us into South Africa. A year and a half later he showed up in South Africa and had my son removed from the South African jurisdiction, this was in 2010. It has been 6 and a half years now since I last seen my son. I am back in Ireland and work as a journalist for an online journal. The last custody hearing took place in November of 2015 and I intend to reapply again this month. I was advised by the judge and the social worker's organization, TUSLA, to carry on with the treatment I receive. I feel that there is not much more the doctor's can do for me and that I have been complying since day one, but I feel that there is bigger problems than just them fearing that my mental health is being looked after. It is a convenient argument for them to say that I am unstable, because of the domestic violence and the fact that I realized that he was an abusive father, I feel he is trying to keep me out of my son's life (so that he can continue the abuse). I have not concentrated on this argument in the court room, instead I have been trying to let the judge know that it is important for me to know that our son who is 12 now is okay and safe, but the reports I read seems very bias and it would appear that they intend to help me out of his life completely. I fear for his life. What else could I do? I love my little boy so much and raised him for the first 6 years of his life completely by myself. It was strange for me to understand that he wanted access and wanted to take up the role as a father all of a sudden. He never took interest when he was still living with us. I am confused and heart broken and up against a system of people who wanted in on the story of our son's removal to get themselves into Ireland.


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