Beyond the deadbeat and absent father phenomenon are some fathers who want to contribute effectively and be present in their children’s lives.
In a global landscape marked by the prevalence of ‘deadbeat or absent’ fathers, South Africa emerges with a staggering statistic — almost half of the nation’s children experience daily life without their fathers. While Statistics South Africa (StatsSA) does not use the terminology ‘absent father’, their studies have rather looked into the living arrangements of children: whether they live with both parents; live with only the father; live with only the mother and live with neither parent. According to Census 2022 results, a recent study shows a much larger percentage of children lived only with their mothers (44.1%) than with their fathers (3.7%).
The prevailing narrative often oversimplifies this as voluntary absence, yet the truth reveals a more intricate reality. Compounded by the deficiencies in South African family law, which historically leans towards mothers in custody disputes, this issue reaches a critical juncture. Despite the Children’s Act of 2005 stressing the paramount importance of a child’s best interests, biases may persist, hindering fathers’ rightful access to their children. A profound and urgent exploration of the South African fatherhood crisis unfolds in this complex tapestry of familial dynamics and legal intricacies.
Fathers whose partners have died
In the aftermath of a parent’s death, a mother’s assumption might be that fathers naturally step into immediate or primary guardianship of their children or share responsibilities and parental rights with maternal families. However, the reality is often starkly different. Two fathers found themselves at loggerheads, battling for access and custody of their children after the passing of their partners. Notably, these fathers were not married to their late partners but were in relationships at the time of their untimely deaths. Their stories shed light on the discrimination and challenges fathers face in participating actively in their children’s lives, revealing a poignant struggle for parental rights.
“Since my daughter’s birth in 2016, I was blocked from accessing her by her maternal grandfather, however, secret meetings were arranged by her mother and grandmother. The access issues intensified after her mother’s passing in a car accident in 2017 so I sought legal intervention, where I faced biased court judgments, with the absurd notion that ‘a cock cannot live in the same house with a hen,’ insinuating harm to my child. Despite a court-approved visitation schedule in 2018, Covid-19 restrictions in 2020 led to a 20-month separation. Attempts for full custody failed, causing me a major depression and costs exceeding R100,000. I am currently awaiting a Supreme Court of Appeal response, on yet another attempt to get custody. For me, issues of access and custody of our children often revolve around unspoken issues of money, overshadowing the child’s well-being, involving maintenance, child support grant money, and other benefits,” said one father, *Petros Chauke.
Like Chauke, *Lindokuhle Gali, a widowed father, faced a turbulent custody battle after his partner’s passing. Despite intending to marry her and contributing to the lobola and child damages, he said he encountered relentless opposition from the maternal grandmother.
“Initially they told me to pay damages for access, which I did pay but that has been followed by a six-year custody struggle with my child’s maternal grandmother. Knowing nothing about the child’s act or procedures that needed to be followed I took a chance through the children’s court. I learned most of them during the process. Because I had no money to pay for private lawyers I often had a pro-bono candidate attorney taking up my case after several delays and later ditching me when they have gained the experience they need or have better offers elsewhere.
“Despite progress made by the previous attorney with the case with a different attorney, the case would return to the initial starting stage. I felt like David against the well-resourced Goliath. Trauma-bonded into submission, I experienced a nervous breakdown and cardiac symptoms. At some point I was accused of pursuing custody for financial gain but still fought through the courts, facing discrimination, harassment, and assault. But every chance she got [my son’s grandmother] she used to try and take my son away from me by use of force; assaulting me so I could retaliate or by trying to prove to courts that I am mentally unstable. Despite challenges I retained custody, but I am still striving to co-parent with my son’s grandmother as this is what his late partner would have wanted.”
Broken up with the mother of the child
For *Dumisani Baloyi, “the Children’s Act may be well-written, but the application has not changed from post-democracy and is still discriminating against fathers. When you walk in there as a father state your case there is already a pre-conclusion: no one will check your facts or consider your story. It is always said the child is best with the mother which is unfair to us as fathers because we are parents too.”
Baloyi, a financial advisor and a father to an eight-year-old boy, told Daily Maverick he has faced a constant struggle to access his son since he turned three years old. He says his ordeal began with the separation from the mother of his child, further complicated by her relocation from Gauteng to KwaZulu-Natal without sharing the child’s address or seeking Baloyi’s consent.
“I was initially scared to be a father, but God had other plans. In 2016, I had my son and was involved in his life from pregnancy until he turned three. After separating from his mother due to family pressure for marriage, I faced denial of access to my child when I began dating again. Attempts to resolve it amicably failed, leading to the involvement of a social worker. When the court battle started the social worker reduced my contact time with my son. Incompetency from the social worker delayed the court case. During this, the social worker colluded with my son’s mother to relocate, causing a loss of jurisdiction. I challenged this but lost.
“The case was set to be heard in KZN, but I was not given an address, complicating matters. My struggle revolves around jurisdiction, and how it changes based on birthplace and residence, making it challenging to access my child if his mother moves and frustrates the system. But as far as discrimination of fathers, I faced it from the start, like being asked to leave clinic seats during check-ups. After all, I was just accompanying her which was never the case because I was there with her wanting to know everything and be ever-present for everything.”
Read more in Daily Maverick: Does the high incidence of ‘dead-beat dads’ demand a review of parental responsibilities and rights?
Before leaving his relationship with the mother of his eight-year-old daughter, award-winning journalist, *Jacob Oliphant recalls being threatened that if he did leave the relationship he would never see the child again, and would have to go and make his own.
“In 2017, I battled depression and ended my relationship with my child’s mother who in turn denied me access. After seeking court intervention, I gained visitation rights every Saturday. Without a formal agreement, I fulfilled my responsibilities, covering medical aid and clothing. A later court order allowed sleepovers. However, ongoing conflicts led to police involvement. In 2022, my child’s mother changed addresses, limiting my access to once a month. Returning to court, I faced challenges and was redirected to the police, who claimed they don’t arrest mothers instead they had to be subpoenaed by the court for contempt of order.
“Despite my efforts, a false narrative persists that I am neglectful as the ‘deadbeat fathers’ narrative persists but no consideration for what we endure to be part of our children’s lives like a lack of information to contribute effectively. It’s hard to be a father and denied access to your child and there are many men in this position just that we choose not to talk about it.
“When schools reopened this year, seeing other parents and fathers sharing those precious moments triggered me. Not due to lack of availability, but because I wasn’t invited. It feels like I’m failing my daughter, and the fact that she is too young to grasp the situation adds to the anxiety. I hope she grows up knowing the truth. This experience makes me hesitant about having more children, despite having an amazing and supportive partner.”
Oliphant said he last saw his daughter in January 2023.
Divorced Fathers
According to *Joe Loftin, child custody is the most emotional aspect of divorce, bearing in mind the child’s interests come first with odds stacked against the father.
“I was under the impression that the Laurie Frasier case and Children’s Act might make a difference; however the entire system is biased in mothers’ favour. As a very involved father for the first nine and 12 years of my children’s lives (before separation and eventual divorce), I was completely cut out of everything that mattered except when I had to pay maintenance. She has primary guardianship of our children and residency and is currently uprooting the children from their entire known environment and support system, after unilaterally deciding to take the children out of their schools and move from Gauteng to a remote part of the Western Cape — more than 1,400 km away from their entire known world.
“This was done five days before the academic year started when I lodged an urgent court application it was not even deemed urgent. When I questioned about the relocation I was told the parent who has primary residency can do whatever they like in this regard, meaning as a father I have no real rights as a parent if primary residency vests with mommy.
“As a father navigating the legal landscape of divorce and custody, I have encountered stereotypes or biases. But a defining moment for me was when I was told that fathers can’t give mothers milk and do not have ovaries and are therefore “not equipped” to be primary caregivers! In my view, societal attitudes toward fathers’ rights are progressive however, the opposite is reflected in the legal system.”
Children’s Amendment Act
The Children’s Amendment Act 17 of 2022 marked a pivotal shift in South African family law. Enacted in January 2023, the law expands the jurisdiction of Children’s Courts to include guardianship matters, previously the domain of the High Court aimed at enhancing accessibility and simplicity in legal recourse for individuals involved in guardianship cases. The Act introduced the concept of micro-partial care as the care of six or fewer children during specific hours or temporarily by agreement.
While this change brought advantages, such as increased access to justice, it also posed challenges, including potential caseload surges and backlogs. Striking a balance between benefits and drawbacks is crucial to ensuring the Act fulfills its purpose of facilitating justice for children and families in South Africa. The Act also addresses abandoned or orphaned children, introducing regulations for micro-partial care facilities and additional matters related to children in alternative care.
Flaws in the Children’s Act
However, *Chauke argues that; “the Children’s Act is a law of destruction and unconstitutional because section 9 stipulates all are equal before the law. But sections of the act already discriminate against fathers all in the name of ‘best interest of the child’ even when it’s not …Section 19 of the children’s act automatically grants mothers parental rights as if they are owners of children and that is sexism because the child comes from the mother and the father.
“Section 20 also grants married fathers automatic rights and responsibilities in the event of a divorce. Section 21 suggests that unmarried fathers must ‘qualify’ through certain criteria and have shown commitment. We are already living in the destruction of teenage pregnancy, children hooked on drugs and crime. Some of it is a result of a lack of fathers in the lives of children and they go astray. To be a father is not a legal issue, it is natural.”
Reflecting on the existing amended child act, Advocate Muhammad Abduroaf — a lawyer and expert specialising in family matters, which comprises child maintenance, custody divorces, and court work — told Daily Maverick that despite the Children’s Act emphasising the best interests of the child, biases hinder fathers’ access to their children, particularly in divorce, death, or separation scenarios.
One significant imbalance, according to Abduroaf, is the automatic parental responsibilities and rights granted to all mothers, but not to fathers of children born out of wedlock. This inherent bias in the legal framework contributes to a systemic disadvantage for unmarried fathers.
Abduroaf criticises the legal system’s inefficiency, citing long waiting times for court dates and limited resources for court-appointed social workers and the Family Advocate’s office. The courts, he notes, may favour the primary caregiver during the child’s formative years, often assuming mothers in this role. This historical pattern can create a perceived advantage for mothers in custody disputes.
“The ‘tender years doctrine,’ is an outdated concept favouring mothers in legal practices. This doctrine assumes that younger children, especially infants and toddlers, are better off in their mothers’ care, disadvantaging fathers, especially in the early stages of a child’s life.”
In the case of access and custody battles, social workers are meant to act as a non-judgemental, third party that mediates between the wants of the parents and focuses on the protection of the child as per Section 35 of the Children’s Act but that is not always the case as demonstrated by *Baloyi’s narrative.
Read more in Daily Maverick: Lack of rights for unmarried fathers renders newborns stateless
In understanding the role of social workers in protecting children’s rights, Kia Cordeiro, Social Worker and Cape Town Coordinator at the South African Depression and Anxiety Group (Sadag), emphasises their pivotal responsibility. She highlights that social workers prioritise the child’s best interest, acting as mediators between parents while ensuring the child’s protection and rights under the Children’s Act.
“Social workers aim to maintain parental responsibilities and facilitate co-parenting decisions, emphasising impartiality and adherence to ethical practices. Regarding absentee fathers, the complexities of parental rights and responsibilities are evident. Unmarried fathers face challenges in establishing parental rights, often requiring legal processes for recognition. The societal bias towards mothers as primary caregivers exacerbates these challenges, perpetuating unequal treatment in family dynamics.
“Addressing this requires educating unmarried fathers on their rights and promoting fair parenting plans to safeguard the child’s best interests. Father absenteeism, influenced by various factors including relationship dynamics, economic constraints, and societal norms, profoundly affects children’s well-being. Research indicates that children raised without fathers are at risk of emotional, social, and psychological difficulties, impacting their academic performance and mental health. Despite societal perceptions, the proverb ‘it takes a village to raise a child’ underscores the community’s role in nurturing children, emphasising the collective responsibility in fostering their welfare.”
In January 2024, a bold precedent was set when a Pretoria mother received a 12-month prison sentence for denying the father of her child access and contact. This landmark decision serves as a resounding reminder and potential catalyst for debate — sparking discussions about the often overlooked and undermined rights of fathers. The courtroom echoes with a stern warning, challenging the status quo and igniting the flame for a broader conversation on the vital role fathers play in the lives of their children. As society grapples with evolving norms, it’s time to reevaluate and champion the rights of fathers, fostering a dialogue that goes beyond legal repercussions and delves into the heart of parental equality and shared responsibility. DM
*We have used pseudonyms for the fathers to protect the identity of the children.