Child Custody in South Africa: Care and Contact

Although people still commonly say “custody”, South African law has moved away from that term. The Children’s Act 38 of 2005 instead refers to “care” (where and with whom the child lives, and day-to-day responsibility) and “contact” (the right to see and communicate with the child). These form part of a parent’s broader parental responsibilities and rights.

The best interests of the child

Section 28(2) of the Constitution and section 7 of the Children’s Act make the best interests of the child the paramount consideration in every matter concerning a child. Courts weigh factors such as the child’s emotional and physical needs, the bond with each parent, stability, the child’s own views (depending on age and maturity), and the ability of each parent to provide care.

Who has care and contact

Married parents ordinarily share full parental responsibilities and rights. When parents separate, they can agree on a parenting arrangement — often recorded in a parenting plan — setting out where the child lives and how contact works. If they cannot agree, a court decides.

Parenting plans

• A parenting plan sets out care, contact, schooling, religion, holidays and how decisions will be made.
• It can be developed with the help of a family advocate, social worker, psychologist or mediator.
• Once registered with the Family Advocate or made an order of court, it becomes binding.

The role of the Family Advocate

The Office of the Family Advocate assists courts in family matters by evaluating the circumstances and making recommendations in the best interests of the child. In disputed cases, the Family Advocate may interview both parents and the child before reporting to the court.

Relocation and changes

Care and contact arrangements are never entirely fixed. If circumstances change — for example, if a parent wishes to relocate with the child — an application can be made to vary the arrangement, and the best-interests standard is applied afresh.

Disputes over children are emotionally charged and legally complex. Mediation is encouraged wherever possible, but where agreement cannot be reached, the High Court, as the upper guardian of all minors, has the final say.