Applying For Sole Custody In South Africa: A Guide For Parents


Child custody can become a critical issue if parents are no longer in a relationship, with one of the most complex decisions being who the child should live with. In many cases, joint custody is the perfect solution, but sometimes this is not an option, and one of the parents decides that, in the best interest of their child, they will apply for sole custody. To apply for sole custody, you must follow a few essential steps.

To apply for sole custody of your child, you must lodge an application with the Children’s Court or the High Court, submitting the relevant documentation. The court will assess the situation by analyzing the documentation and relevant reports before making a decision based on the child’s best interests.

In South Africa, for any court, the primary consideration in any decision surrounding child custody is what is best for the child. This factor is provided for in the legislation that governs child custody matters in South Africa, the Children’s Act 38 of 2005. The following offers a guide for parents who wish to apply for sole custody of their child in South Africa.


What Is Sole Custody?

Sole custody is the legal right granted to one parent to make all the significant decisions regarding their child’s life. This legal right includes decisions regarding the child’s education, healthcare, religion, and general welfare. When a parent is granted sole custody, the other parent is not legally entitled to make decisions regarding the child’s life.


Applying For Sole Custody

If a parent wishes to apply for sole custody, they must consider whether this is in the child’s best interests, as the court will always decide based on this consideration. There are multiple reasons why a parent might think that applying for sole custody is best for them and their child. These may include concerns about the other parent’s ability to care for the child or if there is a history of neglect or abuse.

A parent must lodge an application with the Children’s Court when applying for sole custody. The application must include the following:

  • A completed Form 2: Which is the Application for Guardianship or Custody of a Child;
  • An affidavit setting out the reasons why the parent is seeking sole custody;
  • Any relevant documents, such as medical reports, police reports, or other evidence, to support the application;
  • After this, the court will set a date for a hearing, and both parents will get the chance to present their case.


Factors Considered By The Court

The court will consider several factors when considering an application for sole custody. These include:

  • The child’s best interests;
  • The relationship between each parent and the child;
  • Any history of abuse or neglect by either parent;
  • Each parent’s capability to care for the child;
  • The child’s physical, emotional, and psychological needs;
  • The child’s age and gender;
  • The child’s wishes, if they are of an age where their views can be taken into account.


The court may appoint a family advocate or social worker to prepare a report on the child’s best interests.


The Court’s Decision

After considering all the evidence, the court will decide based on what they believe is the best possible outcome for the child.

Suppose the court grants sole custody to one parent. The other parent may be granted visitation rights. The visitation rights may be supervised or unsupervised, depending on the circumstances of the case. The court may also instruct the non-custodial parent to pay child maintenance.

The court will base its decision on the evidence presented, and this will be binding on both parents. At the same time, both parents must understand that the court’s decision is final and must comply with the court order. Failure to comply with the court order may result in legal repercussions, including fines or imprisonment.

Certain cases might result in the court deciding that joint custody is the best option. Joint custody means that both parents share legal responsibility for the child and make decisions about the child’s life together. Joint custody may not be appropriate in cases with a history of abuse or neglect or where the parents cannot communicate effectively.


Appealing A Decision

If a parent is dissatisfied with the court’s decision regarding custody arrangements, they may have the option to appeal the decision. However, it is essential to note that appealing a decision is complex and time-consuming and may not always result in a favourable outcome.

To begin the appeals process, the dissatisfied parent must file a notice of appeal within a specified time frame. They must file this notice of appeal with the same court that made the original decision. The appellant (the parent who filed the notice of appeal) must also provide reasons for the appeal, which may include errors in the application of the law or factual inaccuracies in the court’s findings.

Once they have filed the notice of appeal, the case will be transferred to a higher court for review. The higher court will review the original decision and the appellant’s reasons for the appeal. The higher court may also consider any new evidence not presented at the initial hearing.

The appeals process could take several months or years to complete and can be costly. The appellant may need to hire an attorney to represent them during the appeal process, and they may also be required to pay court fees.

It is vital to note that the higher court’s decision is not guaranteed to favour the appellant. The higher court may uphold the original decision or make a different decision based on the evidence presented.

Sometimes, it may be more beneficial for the dissatisfied parent to seek alternative dispute resolution methods, such as mediation or negotiation. These methods may be faster, less expensive, and help both parties find a mutually agreeable solution.

Applying for sole custody is a momentous decision that requires careful consideration. Parents who wish to apply for sole custody must follow the correct procedure and provide evidence to support their application. Due to the sensitivity surrounding these cases, it would be best for any parent looking into applying for sole custody of their child to hire an experienced family lawyer. Our Burnett Attorneys & Notaries team has extensive experience in child custody matters and would gladly assist you in this process. Please get in touch with us to set up an appointment.