How is the Custody of Children Determined in South Africa?

Relationships almost never fall apart simply or peacefully. There’s normally a great deal of arguing and accusations that accompany the end of a union. Perhaps the most difficult part of the process occurs when a child is involved and the time comes to determine who gets custody. But How is this Determined and What are the Different Forms of Custody that may be Awarded? How is the Custody of Children Determined in South Africa?

When determining custody, the Children’s Act of 2005 places the highest priority on the child’s wellbeing, what this essentially means is that any elements that influence the best interests of the child are normally seen as the key factors in the process.

If, for example, either parent is unable to properly care for a child or has been shown to act abusively towards them, their chances of being awarded extensive contact rights are drastically lowered. In such cases, the more stable parent may even be awarded sole custody of the child.

How is the Custody of Children Determined in South Africa?
How is the Custody of Children Determined in South Africa?

It should be noted, however, that if a parent is unable to pay for the maintenance of the child it does not make them ineligible for contact

But let’s assume for the time being that both parents are more or less willing and able to adequately raise a child, who gets custody in such a situation?

The Short Version – How is the Custody of Children Determined in South Africa?

If both parents are acknowledged as having parental rights and responsibilities they will normally be given a more or less equal amount of time with the child and say in the child’s life.

In such cases, parents can draw up a parenting plan which determines where the child will live and when this will take place. Once a plan is made, the court can ratify the agreement and the child will have contact with each parent as specified. This scenario is normally referred to as Joint Legal and Physical Custody.

(There is an important difference between joint legal custody and joint physical custody – Joint legal custody gives both parents the ability to make important decisions with regard to the child while joint physical custody simply allows both parents a certain amount of time with the child).

If there is a dispute with regard to the parenting plan, a family advocate or social worker will be called upon to help resolve the matter. If, however, there is a dispute with the decision of the judge when awarding rights and responsibilities, a higher court must be appealed to in order to decide the matter.

How is the Custody of Children Determined in South Africa?
How is the Custody of Children Determined in South Africa?

The Long Version – How is the Custody of Children Determined in South Africa?

There are 4 main parties that will be considered in such scenarios, each one may have rights and responsibilities regarding the child or children in question. The parties are –

  • Biological Mothers – Biological mothers have full parental rights and responsibilities toward their child, inherently. Usually, the mother will only be refused contact if she has been proven to be abusive or unfit for parenting (for example, if she is a drug addict). 
  • Married Biological Fathers – Biological fathers have the same rights as the mother provided that they are either currently married to the mother, or were married at one of the following times –
  • During conception
  • During the birth
  • Anytime between the conception and birth
  • Anytime after the birth
  • Unmarried Biological Fathers – If the biological parents were never married, the father only inherits the rights and responsibilities in the following scenarios –
  • The parents were living together as partners during at the time of the birth 
  • He agrees to be officially identified as the biological father on the child’s birth certificate and lawfully registered as the biological father 
  • He has spent a reasonable amount of time providing and caring for the child in good faith
  • Appointed Guardians – According to Section 24 of the Child Act any person who has a valid interest in the health and well-being of the child can appeal to the High Court for guardianship, of course, the court will still consider the child’s interests and their relationship to the potential guardian.

Who is Most Likely to Receive Custody?

So long as neither biological parent is found to be a danger to the child, both are normally viewed as co-holders of parental rights and responsibilities.

As such, custody is normally split fairly evenly between both individuals, although, context such as the child’s relationship with the parent and the level of commitment thus shown will also be considered.

What are Parental Rights and Responsibilities?

Parental Rights and Responsibilities can be either automatically acquired (such as in the case of a biological mother) or gained via a court decision (such as in the case of a legal guardian). These rights and responsibilities involve things like the right to maintain some contact with the child and the right to make important decisions in the child’s life as well as things like financial maintenance.

Those with parental rights and responsibilities will usually need to come up with an agreed-upon schedule called a ‘parenting plan’ which the child will adhere to, this schedule will determine where the child resides and when.

If the court agrees that this arrangement is acceptable it can verify the schedule and things can proceed as planned. Additionally, if the schedule is agreed upon at the time of the divorce and ratified by the court, any parent who refuses to adhere to the plan will be guilty of a criminal offence.

How is the Custody of Children Determined in South Africa?
How is the Custody of Children Determined in South Africa?

What is Contact and Primary Residence?

The term ‘custody’ is actually a bit outdated and has been replaced with the terms ‘Contact’ and ‘Primary Residence’.

Contact refers to the actual interactions between the child and the parent while primary residence refers to where the child actually lives after the separation.

What happens if Parents do not Agree during Custody Proceedings?

There are two instances in which a parent might raise a dispute during custody proceedings, the first is when they cannot agree to the parenting plan, while the other occurs when they disagree with the court’s decision on a certain matter.

If parents cannot agree to a parenting plan the court will seek out mediation via a social worker or family advocate, the goal of this is to reach some kind of compromise that works for both parties.

If either parent is unhappy with the judge’s decision when granting custody they can appeal the decision to a higher court, however, they will need to provide good evidence as to why they believe the decision is unjust.

What are the Types of Contact that can be Awarded?

There are 6 types of contact that can be awarded when determining a child’s custody.

Reasonable Contact    Normally used after more friendly separations, reasonable contact has little in the way of fixed times and schedules and is normally set at whatever amount of contact is considered ‘reasonable’ after considering the situation and wishes of the child.    
Defined Contact    Times and dates of contact are normally agreed upon early to provide structure to the child’s life, there is also usually a degree of leeway factored into the timetable.    
Supervised Contact    In this scenario, an individual can only have contact when there is an agreed-upon third party to oversee the meeting.    
Phased-in Contact    When it is determined that a parent should gradually see the child more and more over time, this is referred to as phase-in contact.    
Indirect Contact    This form of contact can only take place via certain mediums such as telephone calls or letter writing.    
Shared Contact/Parenting    This arrangement entails both parents having as close to a 50/50 split in duties as possible with parental responsibilities and decisions being made after a certain level of consultation between each party.    

Does the Child/Children have a say in Custody Battles?

Section 10 of the Children’s Act 38 of 2005 clearly states that children who are considered mature and/or developed enough are allowed to take part in the custody proceedings and that their opinions are to be given “due consideration”. 

How is the Custody of Children Determined in South Africa?
How is the Custody of Children Determined in South Africa?

No specific age is given regarding this matter but there are instances in which children as young as 10 years old have been allowed to have their say in the decision making process.

Alternatively, children reach the age of majority at 18 and are then able to make their own decisions with regard to their residence and with whom they have contact.

In Conclusion – How is the Custody of Children Determined in South Africa?

The most important factor in determining custody is the wellbeing and safety of the child, if there is anything that could negatively impact the child in these regards, such as a history of abuse or drug addiction, it will normally have a dramatic effect on the court’s decision when awarding parental rights and responsibilities.

If though, both biological parents are willing and capable of taking care of the child, they will often be considered co-holders of the rights and responsibilities of the child. This means that both parents will be allowed to maintain contact with the child and make important decisions with regard to its upbringing.

The level of contact, as well as the child’s permanent residence, can be decided by the parents by means of a parenting plan which will define the times of contact and the living situation of the child.

If the parents cannot agree on a parenting plan, a social worker or family advocate will be called upon to mediate and hopefully rectify the situation. Children who are considered mature enough are allowed to take part in the custody battle and their opinions are to be given relevant attention.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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