20 Important Frequently Asked Questions About Child Custody In South Africa


Understanding the legal aspects can be challenging in the complex landscape of child custody issues in South Africa. Whether you are in the process of a divorce, have separated from a long or short-term partner, or had a child with someone you are not in a relationship with, knowing answers to some of the frequently asked child custody questions will benefit you in the long run.

There are numerous important frequently asked questions relating to child custody that all parents should know the answers to, ranging from what it means to have sole custody to who pays child maintenance, what primary residence means, and who can be a caregiver to a child.

As we recognize the importance of clarifying questions relating to child custody in South Africa, we have compiled a list of twenty important frequently asked questions about the topic. Let’s delve into key questions and their answers to empower you with the necessary information.


1. What Is Child Custody?

Child custody is the practical and legal relationship between a parent and a child. It involves making decisions about the child’s upbringing and welfare.


2. What Does It Mean If You Have Sole Custody?

Sole custody grants one parent exclusive rights and responsibilities regarding the child. These rights include decision-making authority about issues relating to the child and having physical custody of the child.


3. What Is Joint Custody?

Joint custody involves both parents sharing responsibilities and rights regarding the child. This type of child custody can be joint legal custody (shared decision-making) or joint physical custody (shared living arrangements).


4. What Does Primary Residential Custody Mean?

Primary residential custody is where the child primarily resides. So, if your child spends most nights and days with one parent, that parent has primary residential custody. This parent often has more time with the child, but both parents may still share legal responsibilities.


5. How Can You Get Custody Of Your Children?

If you wish to obtain custody of your child/children, you must approach either the High Court or the Children’s Court. Before granting custody, the court would consider pertinent factors such as the child’s best interests, parental capabilities, and the child’s relationship with each parent.


6. How Do I File For Visitation Rights?

If you are a non-custodial parent, filing for visitation rights involves submitting a court application outlining your desired visitation schedule and explaining its benefit to the child.


7. If I Have Sole Custody, Can I Still Apply For Maintenance?

Yes, having sole custody doesn’t preclude you from seeking maintenance. The non-custodial parent may be required to contribute financially to the child’s upbringing. It all depends on each parent’s financial circumstances and the costs of caring for the child.


8. Who Pays Child Support?

Typically, the non-custodial parent would pay the custodial parent child support. The maintenance amount is determined based on various factors, including each parent’s income and the child’s needs.


9. What Are My Rights As A Father?

Fathers have equal rights to mothers regarding child care, maintaining contact with the child, acting as a child’s guardian, and contributing to the child’s maintenance. If you were married to the mother when the child was born, your rights are equal to the mother’s. If you were unwed, then you still have equal rights, but you might have to prove that you are indeed the child’s father.

Regarding child custody, the court prioritizes the child’s best interests and will consider factors such as each parent’s ability to provide the child with a stable environment.


10. Can A Mother Refuse A Father’s Visitation Rights?

Visitation rights are generally granted unless it risks the child’s well-being. A mother cannot arbitrarily refuse visitation rights without valid reasons or a court order.


11. What Is A Joint Residence Order?

A Joint Residence Order grants both parents the right to have the child live with them. This order reflects a shared physical custody arrangement.


12. Can A Father Get Sole Custody Of His Children?

A father can obtain sole custody if it aligns with the child’s best interests. The court considers many factors when deciding who should care for a child, including the parent’s ability to offer a supportive and stable environment.


13. What Is Shared Custody?

Shared custody involves both parents actively participating in the child’s upbringing, sharing the legal and physical sides of child care.


14. Is Full Custody The Same Thing As Sole Custody?

Full custody and sole custody are not the same thing. Full custody is when both parents have equal custody rights regarding their child or children. Sole custody refers to when only one of the parents has custody rights.


15. What Does It Mean To Be A Primary Caregiver?

The primary caregiver is the parent responsible for the child’s daily needs, providing emotional and physical support.


16. What Rights Do Fathers Have Towards Children Born Out Of Wedlock?

Unwed fathers have the same rights as married fathers. Establishing paternity is crucial to ensure legal recognition and involvement in the child’s life.


17. How Do I File For Sole Custody?

To file for sole custody, submit a court application detailing why it’s in the child’s best interests. This application may involve you demonstrating to the court the other parent’s inability to provide a suitable environment.


18. If I Have Shared Custody, Do I Still Have To Pay Maintenance?

Child support obligations are typically based on income and financial capabilities, not custody arrangements. Even with shared custody, one parent may still be required to contribute financially.


19. What Does It Mean To Be A Custodial Parent?

Being a custodial parent means you make daily decisions about the child’s life, such as which school they will attend or what after-school activities they might do.


20. Who Can Be A Child’s Caregiver?

Any responsible adult can be a child’s caregiver, but custody decisions prioritize the child’s best interests and the ability to provide a stable environment.

Navigating child custody matters in South Africa involves a nuanced understanding of legal processes and considerations. At Burnett Attorneys & Notaries, we are here to guide you through the complexities of child custody, ensuring the best outcome for you and your child. If you have further questions or need legal assistance, don’t hesitate to contact our dedicated team.