If the parents of a marital child do not live together, the non-custodian parent continues to share parental responsibilities and rights and has a prima facie claim to contact (access).
In the absence of anything to the contrary, a non-custodian parent retains the right of reasonable contact after divorce. However, no parent’s claim to contact is unassailable, and all such claims yield to the dictates of the child’s best interests.
Sections 20 and 21 of the Children’s Act of 2005 deals with rights of the father of a child.
Sec. 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-
a) if he is married to the child’s mother; or
b) if he was married to the child’s mother at-
i. the time of the child’s conception;
ii. the time of the child’s birth; or
iii. any time between the child’s conception and birth.
Sec. 21 – Parental responsibilities and rights of unmarried fathers
1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-
a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
b) if he, regardless of whether he has lived or is living with the mother-
i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b) , the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
4) This section applies regardless of whether the child was born before or after the commencement of this Act.