Legal Articles

Many people have come across or at least know homes headed by a single parent. Some amongst us were raised in such homes.

Divorce and Child Custody in South Africa

While most may believe that the ideal situation would a family home where both parents are present - side by side taking care of the family, there are several life challenges which often result in this not being realised.

It can be due to death, divorce, separation or even a search for greener pastures in faraway lands.

Any of the situations above often result in children living with and growing up with only one parent or guardian. The Children’s Act 38 of 2005 was promulgated to ensure that children in South Africa receive care that is conducive for their welfare.

Parental Rights in South Africa

Parental rights and responsibilities refer to the care, guardianship, custody, residence, contact and access (visitation) as well as maintenance privileges that parents have over their children.

In situations where parents are not present or are not fit and proper to be accorded these rights, the Courts may award these rights to guardians upon a finding that the best interests of the children will be taken care of.

Rights of the Biological Mother & Father

Biological parents acquire these rights automatically, but peculiar circumstances will determine to what extent these rights are exercised.

For example, a biological father who is married to another woman who is not the mother nor staying with the children may only have contact and access rights (visitation) and not custody (primary residence) rights where the children are given into the custody of the biological mother.

We must be clear however that in deciding on which party to award custody, the Courts look at various factors and therefore it is not a given that the mother will always get custody.

If the Court finds that the mother is not a fit and proper person to have custody or that her circumstances do not cater for the best interests of the children, it may be in the best interest of the children to award custody to the father. Therefore the determining factor is the best interest of the minor children.

As alluded to above, the Courts are even prepared to entrust the custody of the children in other parties other than the biological parents, where it is deemed in the best interest of the children. This can be their grandparents, foster care homes, adoptive parents or other relatives. The party awarded such custody rights must then act in the best interests of the children.

The question may be what are these responsibilities towards the children?

To answer the above in strict parameters is not possible because the needs of children differ from one to the other.

The wishes of the children concerned must also be considered e.g., some children might show an aptitude for artistic exploits and would therefore require to be assisted to pursue studies in that direction, while some children have special needs due to disability. Nonetheless, it is accepted and recognised by the Act that the following, at a basic level, are required by children for their development and wellbeing;

1. Shelter/accommodation and sanitation,
2. Living conditions that promote their well-being,
3. Clothing,
4. Food,
5. Protecting the children from abuse, harm, and ill-treatment,
6. Medical care,
7. Provision of education to develop the children’s skills,
8. Promoting the principles in the Act,
9. Having a good and trustworthy relationship with the children.

Van Deventers & Van Deventers Inc. – Family Law and Divorce Lawyers South Africa

The above list can never be exhaustive, and we assist parties in custody matters to achieve desired ends, whilst in the best interest of the children. Contact us for further guidance and assistance.

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