"Custody" Today: Care, Contact and Guardianship
Most people still talk about "custody" and "access", and that is completely understandable. But South African law changed those words. The Children's Act 38 of 2005, which came fully into force on 1 April 2010, replaced "custody" with care and "access" with contact. Both now sit under a broader idea called parental responsibilities and rights.
This is not just a change of wording. It reflects a change of thinking: away from parents having ownership-style "rights over" a child, and towards parents holding responsibilities towards a child. Under section 18 of the Act, parental responsibilities and rights are made up of four parts:
- Care — the day-to-day raising of the child: where they live, their home life, their wellbeing, safety, health and development. This is what people used to call custody.
- Contact — maintaining a relationship with a child a parent does not live with, through time together, visits, and communication like calls and messages. This is what people used to call access.
- Guardianship — the power to make major legal decisions for the child, such as applying for a passport, consenting to the child leaving the country, or to the marriage of a minor.
- The duty to contribute to the child's maintenance.
Keeping these apart matters, because they can be shared differently. For example, one parent may have primary care while both parents keep guardianship and both stay responsible for maintenance.
The Golden Rule: The Best Interests of the Child
Every decision about a child in South Africa turns on one test. Not the wishes of the mother, not the wishes of the father, but the best interests of the child. This is written into the highest law in the country.
"A child's best interests are of paramount importance in every matter concerning the child." — Section 28(2) of the Constitution of the Republic of South Africa, 1996
The Children's Act carries this through: section 9 makes the child's best interests paramount, and section 7 sets out a list of factors a court or the Family Advocate weighs when deciding what those best interests are. They include:
- The nature of the child's relationship with each parent and with anyone else important in their life;
- Each parent's ability to care for the child and meet their emotional and physical needs;
- The likely effect on the child of any change, including being separated from a parent, a sibling or a familiar caregiver;
- The child's age, maturity, stage of development and background;
- The need for the child to have stability and a secure, caring environment;
- The need to protect the child from any harm, abuse, neglect or exposure to family violence;
- The practicalities and cost of contact, and whether an arrangement lets the child keep a real relationship with both parents.
Because it is a list of factors and not a formula, there is no automatic outcome. Every family is looked at on its own facts.
Who Holds Parental Responsibilities and Rights
Before you can work out care and contact, you need to know who holds parental responsibilities and rights in the first place. The Act sets this out clearly.
Mothers
Under section 19, a biological mother, whether she is married or unmarried, automatically has full parental responsibilities and rights in respect of her child.
Married Fathers
Under section 20, a biological father has full parental responsibilities and rights if he is married to the child's mother, or was married to her at the time of the child's conception or birth, or at any time in between.
Unmarried Fathers
This is where it is most often misunderstood. Under section 21, an unmarried father does not automatically lose out, but he acquires full parental responsibilities and rights only if he meets certain conditions. He qualifies if he was living with the mother in a permanent life partnership when the child was born, or, whether or not he ever lived with her, if he has consented to be identified as the father and has contributed, or tried in good faith to contribute, to the child's upbringing and maintenance for a reasonable period.
A divorce does not remove a parent
Both parents keep their parental responsibilities and rights after a divorce. What the divorce settles is how care and contact are shared, not whether someone stops being a legal parent. A court can only limit or remove those rights in specific circumstances and where it is in the child's best interests.
Where there is a genuine dispute about whether an unmarried father meets the section 21 conditions, the Act requires the matter to first be referred for mediation to the Family Advocate, a social worker, or another suitably qualified person, before anyone approaches a court.
What Care and Contact Look Like
In practice, most families settle into one of a few arrangements. None of them is "standard", the right one depends entirely on the children and the parents' circumstances.
Primary Residence With Defined Contact
The children live mainly with one parent, the primary caregiver, while the other parent has set contact, for example alternate weekends, a mid-week visit, shared school holidays and time over birthdays and public holidays. This is the most common arrangement in South Africa.
Shared Care
The children divide their time more evenly between both homes. Shared care can work very well, but it usually needs parents who live reasonably close together, communicate well, and can keep routines consistent across two homes.
Guardianship Usually Stays Joint
Even where one parent has primary care, guardianship normally remains with both parents. That means big decisions, like a passport, emigration, or the child leaving the country, generally need the consent of both.
Importantly, there is no rule that children automatically go to their mother. The old "tender years" thinking has fallen away. A young child may live primarily with a father, an older child with a mother, or the time may be shared, whatever the best interests of that particular child require.
How Arrangements Are Decided in a Divorce
The best outcome, for the children most of all, is when parents agree. Where they do, the arrangements are written into a divorce settlement agreement or a separate parenting plan, and the court is asked to make it an order.
The law does not simply take the parents' word for it, though. Under section 6 of the Divorce Act 70 of 1979, a court will not grant a divorce where there are minor children until it is satisfied that the arrangements made for their care, contact and maintenance are in their best interests, or are the best that can be achieved in the circumstances.
To help it decide, the court can call on the Office of the Family Advocate to investigate and report. Where parents disagree, the Family Advocate, often with a family counsellor, looks into the situation, may speak to the parents and the children, and gives the court a recommendation focused entirely on the children's interests.
Care and contact can be dealt with by the divorce court itself (the High Court or the Regional Court hearing the divorce). The High Court is also the "upper guardian" of all children and can be approached directly, and the Children's Court, which sits in every Magistrates' Court, can deal with care and contact issues too.
Parenting Plans and the Family Advocate
A parenting plan is one of the most useful tools available to separating parents. Provided for in sections 33 and 34 of the Children's Act, it is a written agreement that spells out, in advance, how the parents will share their responsibilities. A good parenting plan usually covers:
- Where the children live and the contact schedule for the other parent;
- Holidays, birthdays and special days;
- Schooling and extra-mural activities;
- Healthcare and medical decisions;
- Maintenance and how expenses are shared;
- How the parents will communicate and resolve future disagreements.
To carry legal weight, a parenting plan must be in writing and signed by both parents, and it is then either registered with the Family Advocate or made an order of court. The Act also encourages parents who are struggling to agree to draw up a parenting plan with the help of the Family Advocate, a social worker, a psychologist or a qualified mediator before turning to litigation.
Do the Children Get a Say?
Yes, but not in the way many people expect. Section 10 of the Children's Act gives a child who is of an appropriate age, maturity and stage of development the right to participate in decisions affecting them, and to have their views given due consideration.
That does not mean a child chooses which parent to live with, and it does not mean putting a child in the middle to pick a side. It means a child who is old and mature enough should be listened to, usually through a professional such as the Family Advocate or a social worker, and their views weighed together with everything else. The younger the child, the less weight their stated preference tends to carry on its own.
When Parents Cannot Agree
Sometimes, despite everyone's best efforts, parents cannot reach agreement. Before rushing to court, the law and good sense both point in the same direction first: mediation.
In mediation, a neutral, trained mediator helps both parents work towards an arrangement they can both live with, focused on the children rather than on winning. It is usually faster, less expensive and far less damaging to the family than a court battle, and it keeps the decisions in the parents' hands rather than a stranger's. Where mediation produces agreement, it is written up and can be made an order of court.
A calmer path where it is possible
Anel Krog is trained in mediation and works with families to reach fair arrangements for their children without a drawn-out fight, wherever the circumstances allow it. Mediation is not suitable in every case, for example where there is abuse or a serious imbalance of power, and those situations need the protection of a court.
Where agreement genuinely is not possible, a court will decide, guided by the Family Advocate's report and the best interests of the child.
Common Myths About Custody
A few misunderstandings cause parents a great deal of unnecessary worry. Here are the ones worth clearing up:
- "The mother always gets the children." Not so. There is no automatic rule in favour of either parent. It is decided on the child's best interests.
- "The child decides who to live with." A child of suitable age and maturity has the right to be heard, but does not make the decision.
- "If my ex does not pay maintenance, I can stop the visits." No. Contact and maintenance are separate. You cannot withhold contact over unpaid maintenance, and doing so can count against you.
- "Once we divorce, I lose my rights as a parent." No. Both parents keep their parental responsibilities and rights unless a court orders otherwise.
- "Custody is still the legal term." In everyday speech, yes, but in law it is now care and contact.
Sorting Out Care of Your Children?
Whether you need a parenting plan drawn up or simply want to understand where you stand, Anel Krog Attorneys can help, with clear guidance and, where it is possible, a calmer path than a court battle.
Frequently Asked Questions
Is the word custody still used in South Africa?
Not in law. The Children's Act 38 of 2005 replaced custody and access with the terms care and contact, which fall under parental responsibilities and rights. Most people still say custody in everyday language, but courts, attorneys and legal documents use care and contact.
Do mothers automatically get custody in South Africa?
No. There is no rule that children automatically go to the mother. Every decision is made on the best interests of the child, weighed case by case using the factors in section 7 of the Children's Act. Depending on the circumstances, a child may live primarily with either parent, or the parents may share care.
Can a child choose which parent to live with?
A child does not decide. Under section 10 of the Children's Act, a child of an appropriate age, maturity and stage of development has the right to be heard and to have their views considered. The court weighs those views together with all the other circumstances. Children are never asked to choose a side.
Does an unmarried father have rights to his child?
A biological mother, married or unmarried, has full parental responsibilities and rights. An unmarried father acquires full parental responsibilities and rights under section 21 of the Children's Act if he was living with the mother in a permanent life partnership when the child was born, or if he has contributed, or tried in good faith to contribute, to the child's upbringing and maintenance for a reasonable period. Disputes about whether he qualifies must first go to mediation.
Can I stop contact if the other parent does not pay maintenance?
No. Care, contact and maintenance are separate legal matters. You cannot withhold a parent's contact because they have not paid maintenance, and a parent does not lose contact simply because they have fallen behind. Unpaid maintenance is enforced through the Maintenance Court, not by keeping the child away.
What is a parenting plan?
A parenting plan is a written agreement, provided for in sections 33 and 34 of the Children's Act, that sets out how parents will exercise their responsibilities and rights after separation. It usually covers where the children live, contact with the other parent, schooling, healthcare, holidays and maintenance. To be enforceable it is registered with the Family Advocate or made an order of court.
