28 November 2003
An unmarried father has won joint custody and joint primary residency for his son in a landmark Johannesburg High Court ruling that has given unmarried fathers’ rights a big boost.
The Star newspaper reports that the unnamed man – he cannot be named to protect the identity of his two-and-a-half year old child – took his case to court after his live-in lover suddenly left him in September 2002, taking their child with her.
The couple had met and become engaged very quickly. Shortly thereafter, the woman had fallen pregnant and they had bought a house together. The man told The Star that everything had “seemed perfect”.
However, when he arrived home from work on 18 September, he found that the woman had disappeared with his son, who was just over one year old at the time. A letter was left for the man, providing contact details for the woman’s lawyer and her father, as well as some of her reasons for leaving.
Police couldn’t help
According to The Star, the man tried approaching the police, but there was nothing that they could do about it.
The next day he was given contact details for an attorney who contacted the woman’s lawyer and arranged for him too see his son.
The Star reports that a fortnight later an agreement was reached between the couple, with the aid of lawyers, that the man could see his son every Saturday between 8am and 5pm. No overnight visits were allowed. In addition, the man would have to pay maintenance and would not be allowed to know where the woman and the boy lived.
There followed a period characterised by arguments and disagreements. The man says his son had to be forced away from him at the end of each visit. Feeling that his son was being neglected, he approached social services for help.
The woman reacted by barring him from seeing his child. To this the man responded with an emergency application to the Johannesburg High Court, which put him in contact with the Family Advocate’s office, which has a huge say in such cases because judges in most cases tend to follow the Family Advocate’s advice.
The Family Advocate’s office investigated the case, which involved checking up on all aspects of the child’s life.
When the case went to court in November, Judge Chris de Jager recommended joint custody and full residency for the father. He also ruled that the couple should return to court for another ruling when the child turned six.
Not only is the man’s victory good news fur unmarried fathers, it also bodes well for Hindu and Muslim husbands, whose marriages are not recognised by law.
Judge Maree commented that the man’s victory forced the law “not to discriminate in favour of marriage”.