The short answer
Both of these issues can be resolved through mediation to reach an agreement or parenting plan, which can then be made an order of court.
The whole question
How can I take custody of my 16-year-old son and change his surname to mine? I was never married to his father and I have no written agreement about co-parenting, but the understanding has been that I have the weekends with my son, who has lived with his father since he was very young. Recently my son’s father refused to let me have him for the weekend, citing his exams as the reason. I am very unhappy about this new development and I fear that his father might take my son out of the country without my consent.
The long answer
So there are two issues here – your wish to change your son’s surname to yours, and your wish to have custody of him, rather than having him on weekends – but the way both of these issues can be resolved is through mediation to reach an agreement or parenting plan, which can then be made an order of court.
The law under which a surname can be changed is the Births and Deaths Registration Act of 1992 The Home Affairs website says that this “provides for the rectification, amplification and amendment of the personal information of individuals as contained in the National Population Register of South Africa (NPR)”.
But as your son’s father is taking parental responsibility for your son as well as you, you would need his consent to change your son’s surname to yours. Home Affairs will not allow the change without the consent of both parents. The Home Affairs website says that applications must be on a duly completed Form BI-193 and that both the natural parents’ written consent is required as well as a good and sufficient reason, in writing, for the change.
And of course, when your son turns 18, he can decide which surname he wants to have, without having to ask permission from his parents.
In terms of your wishing to have custody of your son: as he is under 18, he is still a minor and all matters affecting minor children fall under the Children’s Act 38 of 2005. The Children’s Act was put in place to ensure that children enjoy their constitutional rights such as the right to a name, citizenship, care, food and shelter, and protection from abuse, neglect and degradation. In terms of this Act, the Children’s Court must see that the best interests of the child are served, in whatever decisions the court comes to with regard to changing parental rights. The Act says that the voice of the child must also be heard in any decision affecting the child’s future. So, even though a minor child does not have the legal capacity to decide which parent he would prefer to live with, the court will want to hear what the child feels and will take this into consideration when awarding custody to one of the parents.
The Lawyer South Africa says that the factors that will be taken into consideration by the courts include the following:
The child’s age,
The child’s gender,
The amount of contact the child has had with each parent throughout their life,
The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents),
The child’s own testimony,
The child’s sense of being wanted and being kept secure,
The emotional, physical, moral, and religious well-being of the child, and
The accommodation and environment each parent is able to offer for the child. Including the educational facilities available.
Once the child has turned 18, the child will be able to choose whether or not they would like to live with the parent who does not have custody.
The Children’s Act provides a framework for resolving disputes about co-parenting. Parents may consult the office of the Family Advocate if there is a dispute regarding contact with or care of a child, or if they want to draw up a parental rights and responsibilities agreement, register a parental rights and responsibilities agreement, or amend or terminate a parental rights and responsibilities agreement that was previously registered with the Family Advocate’s office.
Parental rights and responsibilities include care of the child, contact with the child, guardianship of the child and maintenance of the child. The parents can enter into an agreement on their rights and responsibilities and then register it with the Family Advocate or make it an order of court at the Family Court.
The Family Advocate is a legal officer employed by the Department of Justice and acts as legal representative of the children. The Family Advocate provides service to the public free of charge.
The parents must draw up a parenting plan with the assistance of a Family Advocate or social worker. This parenting plan is usually worked out as a mediation between the parents who may be in dispute about their rights and responsibilities. It must be signed by both parents and presented to the court who will also want a statement from the Family Advocate or social worker saying that they approve this plan. The court can also order that the Family Advocate should investigate a parenting plan.
So rather than engage with the surname change issue first, it seems to me that a better way to go is to approach the Family Advocate, which, as noted above, is a free service provided by the Department of Justice, to set up a mediation meeting between you and your son’s father, which should lead to a parenting plan being drawn up. This parenting plan must be accompanied by the correct forms which Chris Maree, the Senior Family Advocate at the Department of Justice and Constitutional Development in Pretoria, explains in a 2018 article in De Rebus:
Step 1 – Form 8, 9 and 10:
The parenting plan must be accompanied by a Form 8 of which the A part gives full details of the parents; Part B gives the details of the child, Part C the signed notification to the Family Advocate, the Clerk of the Court or the Registrar of the High Court where the parenting plan is to be registered at the office of the Family Advocate or made an Order of Court, and the date. Part D is a notification to the Office of the Family Advocate, Clerk of the Court or the Registrar of the High Court where a parenting plan has been prepared with the assistance of a Family Advocate, social worker or psychologist, or after mediation by a social worker or other suitably qualified person. In that case, a Form 9 or Form 10 must be attached to the parenting plan. This is when co-holders of parental responsibilities and rights have experienced difficulties in exercising their responsibilities and rights.
Form 9 provides for the Family Advocate, social worker or psychologist to confirm that the child was informed about the parenting plan and was given an opportunity to express their views and that their views were given due consideration bearing in mind the age, maturity and stage of development of the child.
So, just to summarise all of the above:
Parental rights are only effective if they are registered with the Family Advocate or made an order of the high court or the children’s court upon application by one or both parties.
You can make an application to extend or circumscribe parental rights to the high court. The court will look into the relationship between the child and the person whose parental rights and responsibilities are being challenged and come to a decision based on the best interests of the child.
Parental rights and responsibilities agreements or parenting plans registered with the Family Advocate have the same legal effect as an order of court.
The parties should come to a parenting plan agreement before bringing the matter to court. The plan should include:
Where and with whom the child is to live
The maintenance of the child
Contact between the child and either / both of the parties
Schooling and religious upbringing of child.
In preparing for a parenting plan, the parties need to consult with a Family Advocate, social worker or psychologist or have mediation through a social worker. The parenting plan must be in writing and signed by both parties and be in the right format to be made an order of the court. A copy of the plan must be presented to the court and also a statement by the social worker or family advocate that the parenting plan was made in consultation with them and that they agree to it. The Family Advocate and the court must agree that the parenting plan is in the best interests of the child.
To find the office of the Family Advocate in your area, you can contact the Department of Justice and Constitutional Development on 012 357 8205.
Wishing you the best,
Answered on Oct. 12, 2023, 1:17 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.