What are your rights as a father going through a divorce?

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With the current divorce rate in South Africa sitting at 4 out of 10, of which most happen prior to a 10-year anniversary. We took a look at an extremely overlooked aspect of divorce, the father’s rights.

Most of us assume the mother automatically receives more rights than the father. But with the world changing so much over the past 20 years, seeing the topic of gender equality as the driving force behind many movements, political arguing points and debates, one would come to the conclusion that dads now stand a fighting a chance… But do they?

“Fathers retain full parental rights and responsibility,” says Charmaine Walker, a director at DBM Attorneys, who manages the firm’s Debt Collections Department and specialises in Magistrate Court litigation, family law and commercial law.  A person who has dealt with this topic many times.

She explains during a divorce; courts look at various solutions which will be in the best interest of the child. These include:
  • Reasonable care of the child
  • Rights of reasonable access to the child
  • Guardianship, which is where one parent needs to give permission for the other parent to take the child out of the country.

For many fathers, being able to obtain custody of their children seems impossible. While Walker says mothers do predominantly get custody, fathers are able to fight and succeed.

“Many people also think maintenance and having contact with their child is linked. However, they are totally separate. A person can be unemployed and still have full contact with your child. It is your right as a biological parent. Children are not bargaining tools.”

Looking at an element of the topic which is never discussed: stepfathers. There are true men out there, men who take another mans child, raise it and love it like their own. Becoming a friend and father to said child, knowing and accepting he (the stepfather) will always be the third wheel. Surely these men have some form of rights if the couple parts?

“Unless the stepfather legally adopts the child, he has no rights to the child following a divorce. This is because there is no biological link,” Walker explains.

But what are the biggest challenges fathers face when battling for custody?  

Rayven Gopi is one of the few men who won full custody of his two sons after his divorce. He explains during the divorce; he faced several challenges as a father.

“Nobody believes the dad and it’s rare that a father gets custody. I feel people still have the mindset that the mother should receive custody. This generally leads to most fathers simply giving up, just to ensure the wife is happy and makes the process easier.”

However, he refused to allow his children to leave without a fight.

“I fought for custody for eight months and it wasn’t easy at all. There were social workers, attorneys, and psychologists involved. But I wanted what was in the best interests for my children. Also, they wanted to come to me. What’s the use of fighting if they did not want to come?”

Furthermore, he says fighting for custody and the divorce process was time-consuming and emotionally draining. “You are fighting this battle, documenting everything from what you had for lunch with the children to where you went. Then there is constantly trying to prove yourself. People don’t believe men when they say they were abused during a marriage, but they will believe a woman. However, if you are prepared, you can conquer anything.”

During the divorce and the ensuing custody battle, Rayven says he learned a lot and he encourages fathers to never give up fighting for their rights.

“I learned the Children’s Act, visiting the library, getting the necessary books and reading until 2 am in the morning. Then there was consulting legal friends and having an attorney who believed in me, all contributed to me gaining custody of my children. Fathers need to know they have equal rights. I also feel parents should take more responsibility for their children.”

Always putting his children’s lives ahead of his own, fighting for them, Rayven advises fathers to never give up in the quest to protect their children.

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