Legal Articles

Child custody laws in South Africa - How to get full custody of a child

Child custody laws in South Africa are governed by the Children’s Act which also defines parental rights and responsibilities.

Parents have a fundamental responsibility to be actively involved in their child’s lives. However, in some cases the parents are unable to find mutual grounds regarding their child’s best interests.

In most cases where parents are divorced or separated, issues regarding their children begin to arise.

Issues will vary depending on the circumstances of the family but often the problems faced when it comes to deciding which parent gets custody can be the school the child attends, the amount of contact the other parent has with the child or which is the best extra-mural activity for the child.

Furthermore, there are cases where either or both parents want full custody over their children.

Regardless of the issues, if the parents are unable to agree with each other, it may be necessary for them to seek assistance from a third party.

Parental rights and responsibilities

Responsibilities parents have to their children are defined according to Section 18 of the Children’s Act 38 of 2005:

1. A person may have either full or specific parental responsibilities and rights in respect of a child.
2. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-
   1. to care for the child;
   2. to maintain contact with the child;
   3. to act as guardian of the child; and
   4. to contribute to the maintenance of the child.

Parenting Plans – Child custody South Africa

By default, parents should have certain parental responsibilities to their children. However, sometimes parents are unable to come to agreement about how exactly their rights should be exercised.

In these cases, the section 33 and 34 of the Children’s Act stipulates that they should attempt to enter into a parental rights and responsibilities agreement, also known as a parenting plan.

How to get full custody of a child without going to court

In order to avoid going to court, parents should see an expert such as a psychiatrist or social worker who can assist them in resolving the issues they may have.

Additionally, parents may approach the Office of the Family Advocate. If all goes according to plan, a parenting plan may be drawn up and entered into by the parents.

This plan may be registered with the Office of the Family Advocate or made an Order of Court.

How to obtain custody of a child

When parents are unable to agree on a parenting plan, they will need to approach either the High Court or the Children’s Court in their respective area of residence.

In South Africa, parents are not required to make use of legal representation and may choose to represent themselves in Court.

How to apply for full custody in Children’s Court

The Children’s Court would be the best choice for parents who either cannot afford legal representation or would prefer to represent themselves.

Once you have approached the Children’s Court, they issue you with forms to be completed. Once the forms are filled in, they will issue a summons to the other parent to appear in Court on a specific date.

How to apply for full custody in the High Court

There is a High Court in every province which implements procedures far more complicated than that of the Children’s Court.

The High Court is an option for parents who can afford an advocate and an attorney to represent them. There are specific documents which must be drafted, namely a founding Affidavit as well as a Notice of Motion.

What will stand in the way of obtaining custody over a child?

When deciding how contact or visitation should be exercised, the court looks at relevant issues which may be present. These issues vary and are unique to each family.

The following are factors which may limit your parental rights of care or contact:

• Unfit parenting – if there is a history of irresponsible parenting, the relevant parent will be deemed unfit to be the primary care giver of the child
• Child abuse – abuse may be physical, emotional, psychological and may even come in the form of neglect or abandonment
• Psychiatric disorders – should a parent suffer from a psychiatric disorder, the court will decide how care and contact should be exercised
• Living conditions – even though the law doesn’t discriminate against parents based on their living conditions, it's still a factor that the court will take into consideration when making its decision

The Court’s final decision

The final decision of the Court is based on each parent’s story as well as a report drafted by either the Office of the family advocate or a state appointed social worker.

After taking everything into careful consideration, the Court will make its decision based on what is in the child’s best interest.

Van Deventer & Van Deventer Incorporated – Attorneys in Cape Town & Sandton

Our attorneys are experts in family law including child custody law. Contact us to find out how we can assist you with obtaining full custody of your child.