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CHILD RIGHT AND PATERNITY ACKNOWLEDGEMENT IN AFRICAN SOCIETY

CHAPTER ONE

INTRODUCTION

BACKGROUND OF STUDY

Dubbing its lawsuit "Roe v. Wade for Men," a men's rights advocacy group filed a lawsuit in federal district court in March 2006 claiming that current paternity laws violate their constitutional rights because paternity and corresponding child support orders are premised on biological paternity without considering parental intent or interaction with the child. Less a case about reproductive rights, the case begs the question, on what basis should fatherhood be established, biology or something more?

Biological paternity does not necessarily establish legal paternity. Marriage has long served as the basis for establishing a child's paternity: the husband of the child's mother has been presumed the child's father in the absence of several extenuating circumstances. Often, then, paternity is predicated on both a biological and social relationship with the child. Sometimes, however, the husband is not the child's biological father but is still deemed the child's legal father. In recent decades, in an attempt to equalize the rights of marital and nonmarital children and ensure support and benefits for children born out of wedlock, laws have been enacted to establish paternity for a child out of wedlock based solely on biology. An interesting disconnect thus emerges: biological fatherhood has been subordinated to social fatherhood to preserve an intact familial relationship, yet biological fatherhood has served as the sole means to establish the legal benefits and obligations of paternity. The commonality between the biological and social paternity approaches is preservation of the unitary, nuclear family: a family predicated on a two-parent paradigm consisting of one mother and one father.

Our society, however, includes many families which do not comport to the traditional mold. In attempting to restrict parenthood to two individuals-and, more specifically, paternity to one man-courts and legislatures have created inconsistencies in the emphasis placed on biological and social fatherhood. Rather than a paradigm which requires choosing one type of fatherhood over the other, family law should instead move to a model by which multiple fathers are recognized. While it may often be the case that a biological father is also the social father-and one man will enjoy all of the rights and responsibilities of parenthood biological and social fatherhood do not always coincide in the same individual. In those instances, both types of fatherhood should be recognized.

Improved reproductive technologies and changing societal and family norms open the door to multiple parenthood. A simple "who's your daddy" or "who's your mommy" may not be as readily obvious as it once was. Two decades ago, for example, we did not question if a birth mother was, in fact, a legal mother; only recently have women gestated eggs or embryos without any connection to the genetic material. In the paternity context, society assumed a husband was the child's father pursuant to the marital presumption, regardless of whether the husband was, in fact, the biological father. For children born out of wedlock, society usually treated the child as having one legal parent and forwent an analysis of paternity. A major shift in paternity jurisprudence commenced in the 1970s with the enactment of several federal laws that mandated paternity establishment and child support enforcement nationwide.  A primary basis upon which to establish paternity for a child born out of wedlock is through the biological relationship between father and child. Biology as the sole basis for parentage establishment is closely linked with recent developments in paternity law, child support enforcement, and welfare reform. Regardless of intent, an ongoing relationship with the child's mother or acts of parenting, biology alone can and does establish paternity.

 In recent decades, genetic testing-like reproductive technology-has improved and we now have the scientific ability to identify each child's biological mother and father. As courts and legislatures embrace functional and intentional parenthood as alternatives to biological parenthood, the disconnect between parenthood by biology and parenthood by social relationship grows wider. While courts are beginning to imbue persons with legal parental rights who have no biological connection to their children, the push to establish paternity in greater numbers by relying on biology seems grossly at odds with other family law trends.

A critical component of the discussion concerning the interplay of biological and social paternity is the current adherence to the two-parent paradigm. In a series of cases, the Supreme Court rejected the claims of non-marital, biological fathers who contested the termination of their parental rights because they had not established a significant enough connection with their child and the child's mother.  The biological father was given no legal protection in those cases because another man had assumed the role of father. Thus, biological fatherhood was subordinated to social fatherhood because the Supreme Court continued to embrace the traditional two-parent family. Conversely, in the paternity context, courts have used biology alone to establish parentage to ensure that a child has two available parents-and two sources of financial support. In both contexts, though, the full range of parental rights and responsibilities has been conferred or denied in an effort to preserve a two-parent family.

Reliance on the traditional two-parent paradigm must yield to a more flexible approach to parentage. Using paternity as a model, I propose that courts disaggregate the rights and responsibilities of parentage. In the absence of any other indicia of parentage, biology should not become the predicate for a judgment of paternity that identifies the biological father as the only legal father with the full range of responsibilities such judgment entails. Rather, biological connection-standing alone-should have a more limited function in determining the legal connection between the biological father and child.

Biological fatherhood should be but one determinate of full paternity; if a biological father has no desire or intent to parent, has no functional connection with the child, and has no social connection to the child's mother, he should not be the child's only legal father. His role should be limited to modest financial support, if appropriate and a source of genetic identity and history for the child. In this way, social fathers may share in the responsibilities of fatherhood, alongside the biological father, and may share in the many benefits. Limiting the biological father's legal rights and responsibilities in this manner fosters greater fairness in establishing parenthood: a man who truly has neither desire nor intent to parent will have a more limited obligation to the child under my proposal than the he does under the current regime. More importantly, we can protect the institution of parenthood and acknowledge that parentage is defined by much more than DNA.

While it is beneficial to a child to have access to her genetic history and some financial support, biology alone should not give rise to full parental obligations and rights without additional intent or parental actions. To preserve the best interests of the child, we should establish a system whereby a biological father is identified to provide genetic history and, if appropriate, furnish a minimum amount of child support. Yet, to preserve the integrity of parentage and in fairness to biological fathers, a man who has expressed neither parental intent nor parental obligation should not shoulder the majority of responsibility for a child's support.

Often the biological father will also be the social father, and all rights and responsibilities will rest with him. In the absence of the combination of biological and social fatherhood, a disaggregation of rights will permit a social father to contribute financial support and nurturance, and to remove the full burden of support from the biological father. The biological father will not have full parental rights without accepting them, thus enabling another man to contribute to the child's welfare and support-and establish a legal parental relationship. Finally, recognition of biological and social fathers will help alleviate much of the current unrest concerning paternity fraud, by protecting children's interests in their current relationships with their social fathers and enabling them to commence a relationship with their biological fathers.

Migrant labour and the resulting residential separation of partners, delayed marriage, and the growing delinking of child-bearing from marriage, all mean that many men today are both social and biological fathers. A man may be supporting his sister’s children who live in the same household as he does because that is what is required of him as her older brother; he may also pay maintenance for a child of a former partner with whom he has regular contact, but he may not have acknowledged a child of another partner who he no longer sees. Another man may have little contact with his own children in a former household because he has moved in with a woman who has children from her previous relationship and he has become their primary source of support (Mkhize, 2004).

The question is: Does physical separation suggest that fathers are not involved with their children? Men’s engagement with children may be underestimated if it is measured only in terms of current physical co-residence rather than paternal involvement over time (Townsend et al, 2005) or commitment as demonstrated by remittances paid to support a child. Townsend et al found that men’s co-residence and, separately, their engagement with children, is higher in a rural area when studied in more depth, and that it changes over the course of childhood.

Delayed marriage, male migrant labour, and greater economic autonomy among women mean that many children do not live in the same home with their fathers over extended periods of time. Men describe the pain they experience when they leave home to take up work in distant places so that they can earn enough money to support their families. Marlize Rabe interviewed mine workers – most of whom live in single-sex hostels around the gold mines - some of whom only get home to their rural families once a year. All saw economic support for children as core to what it meant to be a good father, and stated that they only undertake the dangerous work underground so they can support their children. One mine worker said “Life is so unfair. I found myself bound to work for a contractor although it pays so little because I could not face my children and tell them I had no job, and that is why I could not provide them with clothing and food. It made me feels irresponsible” (2006: 262). Helping men to become and stay engaged with their children is a priority in several government policies and programmes run by civil society organizations (CSOs).

STATEMENT OF THE PROBLEM

In South Africa for example especially since democratization in 1994, the South African government provides for the support of families, including fathers, in a number of ways, But, many forms of support for children through fathers depend on recognition of a child by their father, which is needed for a child to be given their father’s name. The child’s father must register his child’s birth in order for the child to receive a birth certificate; without this, a child is registered with their mother’s name only (Giese & Smith, 2007). Once a father recognizes his children, the state requires that he supports them, whether or not he is married to the mother, or lives with his children. In a case where the father did not register the child’s name during birth means that that the child is devoid of all paternal responsibilities. In this case it is clearly seen that the African society acknowledges paternity in the rights of a child. The study will however give a critical analysis to child right and paternity acknowledgment in African society as there has not been any research done on it aside the works done on child’s rate and mortality.

AIMS AND OBJECTIVES

The main aim of the study is to give a critical analysis to child right and paternity acknowledgment in African society. Other specific objectives include:

1.  To determine paternity acknowledgment and the right of a child.

2.  To examine the consequences of family structure changes for a child.

3.  To examine the role of child’s support in strengthening families.

4.  To examine the importance of paternity establishment.

5.  To determine the history of paternity establishment and acknowledgement of paternity.

RESEARCH QUESTION

1.  What has paternity acknowledgment to do with the right of a child?

2.  What are the consequences of family structure changes for a child?

3.  What is the role of child’s support in strengthening families?

4.  What is the importance of paternity establishment?

5.  What is the history of paternity establishment and acknowledgement of paternity?

STATEMENT OF RESEARCH HYPOTHESIS

HO: Paternity acknowledgment has no significant effect on the right of a child in the African society.

HI: Paternity acknowledgment has significant effect on the right of a child in the African society.

SIGNIFICANCE OF STUDY

The study will serve as a guide to the African parents on the importance of paternity acknowledgment to secure the future of the child as well as his rights as a child. An African who is not ready to father a child knowing the responsibilities that comes with it will be aware will control his libido to avoid birthing a child he will not take full responsibility for or in worse cases refuse to acknowledge the child. Finally, it will serve as an added research work on African parenting especially child right and paternity acknowledgment in the African Society.

SCOPE OF STUDY

The study will cover child right and paternity acknowledgment in African Society: a critical analysis.

LIMITATION OF STUDY

Financial constraint- Insufficient fund tends to impede the efficiency of the researcher in sourcing for the relevant materials, literature or information and in the process of data collection (internet, questionnaire and interview).

Time constraint- The researcher will simultaneously engage in this study with other academic work. This consequently will cut down on the time devoted for the research work.

DEFINITION OF TERMS

Child: A child means every human being below the age of 18 years.

Child right: Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to minors. The field of children's rights spans the fields of law, politics, religion, and morality.

Paternity: The state of being someone's father (fatherhood).

Acknowledgment: Acceptance of the truth or existence of something. the act or fact of accepting the truth or recognizing the existence of something. Giving an acknowledgment is a way of giving credit or props. Acknowledgments let you know who contributed or did work on something.  When you see the word acknowledgment, think "giving credit and thanks".

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