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Parental responsibilities and rights are often misunderstood, leading to various myths and misconceptions about the topic. These misunderstandings can cause considerable confusion and could even lead to legal problems. In this article, we seek to clarify some of the common myths and provide accurate information to help parents better understand their rights as well as their obligations.

 

Myth 1: Only Biological Parents Have Parental Rights

One of the most common misconceptions is that only biological parents have parental rights. However, South African law recognises that parental responsibilities and rights can be conferred to individuals other than biological parents. According to The Children’s Act 38 of 2005, guardians, adoptive parents and sometimes even step-parents can be granted these rights. In respect of minor children, the law always aims to prioritise the best interests of the child. With this in mind, it’s understandable that in some cases, non-biological individuals may be better suited to fulfil parental roles.

 

Myth 2: Mothers are Automatically Granted Residency and Primary care

Another widespread belief is that children will always reside with their mothers after separation or divorce. While it is true that historically, mothers were often favoured in “custody” disputes, the law now elevates the best interests of the child over any automatic presumption. Both parents are considered equally, and decisions are made based on various factors, including the child’s emotional and physical needs, stability and the ability of each parent to provide care.

 

Myth 3: Fathers Have No Rights if Not Married to the Mother

Many people mistakenly believe that fathers have no parental rights if they are not married to the mother. The Children’s Act clarifies that unmarried fathers can acquire parental responsibilities and rights if they are living with the mother at the time of the child’s birth, contribute to the child’s upbringing and expenses and demonstrate a committed relationship with the child. Unmarried fathers can also apply for these rights through a court application.

 

Myth 4: Parental Rights are Absolute

Some parents believe that once they have parental rights, these rights are absolute and cannot be challenged. This is not true. Parental responsibilities and rights are always subject to the best interests of the child. Courts can intervene and alter any of these rights if it is deemed necessary for the welfare of the child. This means that if a parent is found to be neglectful or abusive, their rights can be limited or even terminated.

 

Myth 5:  Parental Responsibilities and Rights Automatically End When a Child Turns 18

It is a common misconception that parental responsibilities and rights automatically end when a child turns 18. While it is true that the legal concept of childhood ends at 18, some responsibilities, such as financial support, may continue beyond this age. Especially if the child is still dependent, such as those who are pursuing a higher education. This means that parents may still be required to support their children financially until the time that they become self-sufficient.

 

Myth 6: Step-Parents Have Automatic Rights

Step-parents often think they automatically acquire parental responsibilities and rights upon marrying the child’s biological parent. This is not the case. Step-parents must apply for these rights, and it is up to the court to decide whether they are granted. The court typically considers the step-parent’s relationship with the child, the biological parents' views, and the overall welfare of the child.

 

Myth 7: Only Courts Can Decide on Parental Responsibilities and Rights

There is a belief that only courts can decide on issues regarding parental responsibilities and rights. While courts play a crucial role in contentious cases, many of these matters are resolved through mediation and negotiation. Mediation is encouraged by South African law as it helps parents reach amicable agreements without the need for a court battle. This approach is often less stressful and far better for the child’s well-being.

 

Understanding parental responsibilities and rights in South Africa is crucial for ensuring the well-being of minor children and the proper functioning of families. By debunking these common myths, parents can better navigate the legal landscape and make informed decisions. Contact Cawood Attorneys if you are in doubt about your own parental rights. Our professional legal team can provide advice, clarity and guidance tailored to your individual circumstances.

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