4 Important Elements Of Child Custody In South Africa

When it comes to divorce, all relevant parties are subjected to a hoard of difficulties as they traverse their new landscape. Often the ones who suffer the greatest are the children involved. For this reason, the Children’s Act, Act 38 of 2005, was set up to protect children’s rights, helping to ensure their safety by stipulating the parental rights and responsibilities regarding child custody in South Africa.

There are a few essential elements in regards to child custody that every parent or guardian should know. Including their rights and responsibilities as parents or guardians, what they need to ensure the child in the care has access to, and what rights they have after their divorce is finalized.

To help you navigate your new landscape and offer some knowledge to ease your mind, we have put together a list of four essential elements that might benefit you in the long run regarding child custody in South Africa.


1. Rights & Responsibilities Regarding Child Custody

There is a section in the Children’s Act, Act 38 of 2005, called Parental Rights and Responsibilities. This section describes the parent or guardian’s rights and responsibilities towards the child(ren) in their care.

If a person has been granted full parental rights and responsibilities, it means that they have the right and responsibility to:

  • To care for the child(ren)
  • To maintain contact with the child(ren)
  • To act as guardian of the child(ren)
  • To contribute towards the maintenance of the child(ren)
  • To administer and safeguard the child(ren’s) property and property interests
  • To assist or represent the child(ren) in administrative, contractual, and other legal matters
  • To give or refuse consent required by law in respect of the child, including marriage, removal or departure from the Republic of South Africa, adoption, or the child(ren’s) application for a passport


Both parents may hold parental rights and responsibilities when co-parenting their child(ren). In this case, the parents can act without the other parent’s consent when exercising those rights and responsibilities, except where a court order, law, or the Children’s Act states otherwise.


2. What Does Child Custody In South Africa Entail?

Once divorce proceedings begin, the care of the child(ren) involved is relegated to either a single parent or both parents in the case of shared custody.

Overall whoever has custody or care of the child(ren) has the right to supervise their daily life, but it also means that they must ensure that they provide the child(ren) with:

  • A healthy and safe home environment
  • Their day-to-day needs
  • Their required daily food intake
  • Support
  • An education


3. Who Gets Custody Of A Child After A Divorce In South Africa?

In South Africa, the courts usually grant guardianship to both parents, and this agreement typically forms part of the divorce settlement. Yet, some specific circumstances call for the court to award sole custody to one parent and, in some cases, someone who is not the child’s biological parent.

As a parent or prospective guardian, you might wonder about your rights and responsibilities regarding child custody in South Africa.


Biological Mothers

Biological mothers, whether married to the father or not, immediately receive full parental responsibilities and rights concerning their children. As a mother, you receive and retain those rights based solely on the fact that you gave birth to your child(ren).


Married Biological Fathers

The Children’s Act grants biological fathers the same rights and responsibilities as the mothers unless the court has ruled otherwise. These rights are awarded to the father so long as he has met specific criteria, including:

  • Being married to the child(ren’s) mother
  • Being married to the child(ren’s) mother at the time of their conception or birth
  • Being married to the child(ren’s) mother at any time after they were born


Unmarried Biological Fathers

Unfortunately, the Children’s Act does not confer automatic paternal rights on biological fathers as it does for mothers. Although, there are several ways an unmarried biological father can receive full rights and responsibilities for his child. The first is that he is in a life partnership and living with the child(ren’s) mother at the time of their birth.

If he was never in a relationship or living with the mother, he can still claim rights and responsibilities for the child(ren) by:

  • Consenting to be identified as the child(ren’s) father
  • Successfully applying to be recognized as the child(ren’s) father in terms of section 26
  • Paying damages in terms of customary law
  • Contributing or attempting to contribute to the child(ren’s) upbringing for a reasonable period
  • Contributing or trying to contribute to the maintenance expenses for a reasonable time



Any person interested in a child’s well-being, care, and development may apply to the High Court and ask for an order granting guardianship of the child. The court will then take into account the following aspects before granting this guardianship:

  • The best interests of the child(ren) involved
  • The relationship between the child(ren) and the person applying for guardianship
  • The court will also look at any other facts that might affect the living conditions of the child(ren)


4. Custody Options Available For Divorced Parents

In many cases, parents share their children via joint custody. Still, in some cases, the child(ren) involved will live primarily with one of the parents, only seeing the other at designated times. There are also instances where one or both parents will only have limited access to their child(ren), and in other cases, they will have no access.


Joint Custody

If parents have agreed to share joint custody of their child(ren), this often entails the child(ren) living with both parents for equal amounts of time weekly.


Primary Residence

In this scenario, one of the parents has been awarded primary residence, so the child(ren) will reside at their home, and that parent is considered their primary caretaker. The parents will then sort out a visitation plan so that the other parent can visit or be visited by their child(ren).


Right To Contact

In this case, even if the primary residence was not awarded or sought after by one of the parents, they will still have the option to visit their child(ren) according to a visitation plan.


Limited To No Contact

If there is or has been a history of violence or abuse, if the courts perceive the child(ren) to be in danger, or if contact between the parent and child(ren) does not appear to be in the latter’s best interest. Then no contact should be allowed between the said parent and the child(ren).

Sometimes, a parent may be allowed visitation rights as long as they are under supervision. This form of contact can continue until the parent is deemed to no longer present a threat to the child(ren).

Going through a divorce is challenging, and ensuring that your child(ren) is happy with the outcome is of utmost importance. There are many more aspects surrounding child custody in South Africa than we have detailed above. If you have any questions or wish to speak to someone with in-depth knowledge of these aspects, please don’t hesitate to contact us at Burnett Attorneys & Notaries. We would be happy to assist you in any way we can.