Child Custody South Africa: Care, Contact and Parental Responsibilities
South African law replaced the old concept of 'custody' with a more nuanced framework under the <strong>Children's Act 38 of 2005</strong>. The Act uses the terms <em>parental responsibilities and rights</em>, <em>care</em>, and <em>contact</em> instead of custody and access. The guiding principle in all matters affecting children is the <strong>best interests of the child</strong>, as set out in section 9 of the Act and section 28 of the Constitution.
Key Definitions Under the Children's Act
| Term | Meaning |
|---|---|
| Parental responsibilities and rights | The full bundle of rights and duties including care, contact, guardianship, and maintenance. |
| Care | The right and duty to have the child live with you and to look after their daily needs — equivalent to what was called 'custody'. |
| Contact | The right to spend time with or communicate with the child — equivalent to 'access'. |
| Guardianship | The right to administer the child's property and to give consent for major decisions such as marriage, passport applications, and medical procedures. |
Who Has Parental Responsibilities and Rights?
Under section 20 of the Children's Act, the biological mother automatically has full parental responsibilities and rights from birth. The biological father acquires automatic rights if he was married to the mother, or if he was in a permanent life partnership with the mother, or if he consented to be identified as the father on the birth certificate and has contributed to the child's upbringing.
A father who does not automatically have rights may apply to the High Court or Children's Court to have rights conferred on him. The court will consider whether this is in the best interests of the child.
Parenting Plans
Section 33 of the Children's Act encourages separated parents to enter into a parenting plan — a written agreement that sets out how parental responsibilities will be exercised. A parenting plan should cover:
- Where the child will primarily reside
- Contact arrangements with the non-resident parent (weekends, holidays, school holidays)
- Decision-making about education, religion, and medical treatment
- How parents will communicate with each other about the child
- Financial contributions and maintenance
- Holiday and international travel arrangements
A parenting plan agreed by both parents must be registered with a Family Advocate or made an order of court to be enforceable. The Family Advocate can assist parents in drafting a parenting plan free of charge.
Contact the Family Advocate at your nearest Regional Court. In Gauteng: 012 319 1851 (Pretoria) or 011 220 1600 (Johannesburg). In the Western Cape: 021 462 5070.
The Family Advocate
The Family Advocate is a government-employed attorney based at the Regional Court. The Family Advocate's office investigates the best interests of children in disputes and makes recommendations to the court. The service is free. The Family Advocate can:
- Assist parents in drafting and registering parenting plans
- Investigate allegations of abuse or neglect
- Interview children (in a child-sensitive manner) to ascertain their wishes
- Make recommendations to the court on care and contact arrangements
- Conduct mediation between parents
When Parents Cannot Agree: Court Orders
If parents cannot reach agreement through mediation or the Family Advocate, either party may apply to the High Court or the Children's Court (a division of the Magistrate's Court) for an order on care and contact. The court will consider the Family Advocate's report and any other evidence and make an order based on the best interests of the child.
The court can make a wide variety of orders including primary residence with one parent, shared care (equal time with both parents), supervised contact, or in extreme cases, no contact if contact would harm the child.
Best Interests of the Child: Factors the Court Considers
- The child's age, maturity and stage of development
- The child's relationship with each parent and any siblings
- The ability of each parent to provide a stable, loving environment
- The child's own wishes (given weight according to the child's age and maturity)
- Any history of abuse, domestic violence, or substance dependency
- The practicality of the proposed arrangement (distance, schooling, work schedules)
- Each parent's willingness to support the child's relationship with the other parent
Do not remove a child from South Africa without the written consent of the other parent or a court order. South Africa is a signatory to the Hague Convention on International Child Abduction.
Relocation with a Child
A parent who wishes to relocate to another province or country with the child must obtain either the written consent of the other parent or a court order permitting relocation. Relocating without consent or a court order is unlawful and may constitute abduction under the Children's Act. Applications to relocate are heard in the High Court.
Varying a Custody Order
A care and contact order is not permanent. Either parent can apply to court to vary the order if there has been a material change in circumstances. Common reasons include the child's school or place of residence changing, a parent relocating, or changed work arrangements. The application is made in the same court that issued the original order.