In the last few years, child custody laws have changed, providing fathers more rights and access to their children. Still, the question plagues many a mind on whether or not a father can take a child from the mother in South Africa. A common misconception is that in the event of a parental dispute regarding primary residential custody of a child(ren), the mother will automatically be granted custody, but is this the case?

In South Africa, a father can take a child from the mother if he can prove it is within the child(ren)’s best interests. Although mothers automatically receive full rights and responsibilities for their child(ren), a court, for various reasons, can grant the father primary residential custody.

Many legalities are involved in deciding where a child should reside. The Children’s Act, Act 38 of 2005 dictates the rights and responsibilities of parents, and these differ slightly depending on the parent’s relationship with the child(ren). Once you understand these rights and responsibilities, you can understand what situations might call for a father to be allowed to take a child(ren) from the mother in South Africa.


Do Parents Automatically Receive Full Rights To Their Children?

The rights and responsibilities as dictated by the Children’s Act differ slightly depending on whether you are the biological mother, married biological father, or unmarried biological father.


Biological Mothers

Biological mothers have full rights and responsibilities for their child(ren) because they gave birth to them. Mothers receive these rights whether they are married or unmarried.


Biological Married Fathers

A biological father has full rights and responsibilities to his child(ren) so long as he:

  • Is married to the mother
  • Was married to the mother at the time of the child(ren)’s conception, birth, or any time between conception and birth


Biological Unmarried Fathers

An unmarried father does not automatically receive full rights and responsibilities in regards to his child(ren), although he can acquire these rights in terms of section 20 if:

  • He was living with the mother in a permanent life partnership at the time of the child(ren)’s birth
  • If he has not lived with or is not living with the mother, he can get these rights by:
  • Consenting to or successfully applying to be identified as the child(ren)’s father;
  • If he pays damages in terms of customary law;
  • Contributes or has attempted in good faith to contribute to the child(ren)’s upbringing and or expenses in connection with the maintenance of the child for a reasonable period


When Might A Father Receive Primary Residence Custody?

There are several reasons why a court might grant a father primary residential custody of his child(ren) and why a mother might not receive these rights. The Children’s Act helps to ensure that whatever happens, the child(ren) is protected and placed in the best possible home for their health and mental well-being. So when can a father take a child from the mother in South Africa?

A father can take a child from the mother if the mother and the father agree upon this arrangement. In some cases, both parents know that the child(ren) would be better off staying with their father. The reasons for this could be that the father has a more stable income or home environment or if the mother has commitments that prevent her from having primary residential custody of their child(ren).

A father can apply to the High Court, a divorce court in a divorce matter, or a children’s court to have the rights and responsibilities of the mother revoked. This application could be due to physical or emotional abuse, drug addiction, or an unsafe environment for the child(ren). In this case, on the court’s recommendation, a father could take a child from the mother. The court would have to consider the following:

  • The relationship between the child(ren) and the mother
  • The best interests of the child
  • The degree of commitment that the mother has shown toward the child
  • Any other fact that should, in the opinion of the court, be taken into account


Usually, these conditions are set out in a parenting plan that both parents need to follow. This parenting plan could include how the mother should provide for her child(ren), how often she is allowed to see them, and if they can have overnight visits with her. In this instance, the court might decide to grant the father primary residence custody while still allowing the mother to retain her rights and responsibilities.

The court might also rule that the mother only has limited contact with her child(ren). In this case, the mother might have certain times designated to visit her child(ren). This limited contact could also require that another capable adult supervise the mother. Once the mother has proved to the courts that she has resolved her negligent, abusive, or neglectful behaviour, they might decide to reinstate her rights and responsibilities.


Can A Father Take A Child From The Mother Without Permission?

Can a father take a child from the mother in South Africa for no apparent reason or without explicit permission from the High Court, a divorce court, or a children’s court? A father is not allowed to take a child from the mother unless this removal was previously agreed upon or he is following a court ruling.

If a father takes his child(ren) and refuses to grant the mother access to them, he will then be guilty of an offence and is liable on conviction to either a fine or imprisonment for a period of up to and not exceeding a year.

Mothers and fathers have rights to their children; unless a court has stipulated otherwise, they cannot be denied access or visitation. Mothers are automatically granted rights and responsibilities toward their children, whereas a father needs to have met specific criteria to receive these rights and responsibilities.

In most cases, it is believed that children are better off having their primary residence with their mothers. Sometimes, this is not the case. In these instances, the parents or the court might decide to have the child(ren) live with their father instead.

If you are unsure of your rights as a father or a mother and you need some advice in this regard, our litigation team at Burnett Attorneys & Notaries would be happy to assist you. Please don’t hesitate to contact us; we will strive to give you pure and honest advice for your specific situation.