Understanding your custody right as a parent in South Africa can feel overwhelming, especially during separation or divorce. The South African legal system prioritises the best interests of the child, and custody decisions are made based on this principle—not automatically in favour of one parent over the other. This article answers the most important questions about how custody rights work and how they are determined in our courts.
What does custody right mean in South African law?
In South Africa, the term “custody right” is generally understood as the right to care for and make decisions about a child. Legally, the term “care and contact” is preferred under the Children’s Act 38 of 2005. Custody involves not only physical care (where the child lives) but also decisions about education, healthcare, religion, and general welfare. The law does not favour mothers or fathers by default; instead, it looks at what arrangement serves the child’s best interests.
How are custody decisions made?
Custody decisions are based on what the court considers to be in the best interests of the child. This is not a fixed formula but a broad, flexible standard. Courts consider many factors, including the emotional bond between the child and each parent, the ability of each parent to provide a stable home, and the child’s own views if they are mature enough to express them. At Andrew Scott Attorneys, we help our clients navigate these criteria and build strong, child-focused parenting proposals.
What is the difference between primary care and joint care?
Primary care means one parent is primarily responsible for the day-to-day upbringing of the child, while the other may have contact rights such as visitation or shared holidays. Joint care (often called shared custody) means both parents are significantly involved in the child’s upbringing, sometimes on a 50/50 basis. While joint care is ideal in some situations, it’s not always practical. Courts will assess whether a joint care arrangement will promote stability and emotional wellbeing for the child.
| Care Type | Description | Who Decides? |
|---|---|---|
| Primary Care | One parent has the main caregiving role | Decided by court or parenting plan |
| Joint Care | Both parents share caregiving responsibilities | Requires cooperation and agreement |
Can unmarried parents claim custody rights?
Yes, unmarried parents in South Africa can claim custody rights. Both parents automatically have parental responsibilities and rights if they meet the legal requirements under the Children’s Act. A biological mother always has full rights by default. A biological father must meet certain conditions—such as living with the child or contributing to the child’s upbringing—to be legally recognised. If these requirements are met, the father has equal standing in matters of care and contact.
What role does a parenting plan play in custody arrangements?
A parenting plan is a legally recognised agreement between parents that outlines how they will share custody rights and responsibilities. It can include everything from living arrangements and schooling to holiday schedules and decision-making roles. Parenting plans must be developed in good faith and should reflect the child’s needs, not the preferences of the parents. These plans can be made legally binding by filing them in court or through the Family Advocate’s office. Our team can assist in drafting balanced parenting plans that promote cooperation and minimise conflict.
How does the court assess what’s in the child’s best interests?
South African courts use a range of criteria to determine what’s in a child’s best interests. These include:
- The child’s age, gender, and developmental needs
- Emotional and physical security
- The capacity of each parent to provide care
- The child’s relationship with each parent
- Cultural, religious, and linguistic background
- The child’s own preferences, if appropriate
This assessment is highly individualised. No single factor determines the outcome. If you are involved in a dispute, having a legal expert who understands these factors is critical. You can get trusted legal support from Andrew Scott Attorneys.
Can a child choose which parent to live with?
Children do not have the final say, but their wishes are considered—especially as they grow older and more mature. The court may consider input from a social worker, psychologist, or family advocate to determine the child’s preferences and assess whether those choices are reasonable and in their best interests. The older and more mature the child, the more weight their opinion typically carries.
What happens if parents cannot agree on custody?
If parents cannot agree on custody arrangements, the matter may be referred to mediation or decided by the court. Mediation is encouraged as a first step, often facilitated by a family advocate. If that fails, a court application must be made, and a judge will decide based on the evidence presented. While litigation is sometimes necessary, it’s often emotionally and financially draining, so we encourage parents to resolve matters amicably with legal guidance. In contentious situations, our litigation team can step in to protect your rights.
Are custody rights permanent?
No, custody arrangements are not set in stone. They can be reviewed and adjusted as circumstances change. For example, a parent may relocate, or a child’s needs may evolve. Either parent can approach the court to request a variation of the current order or parenting plan. It’s important to work with a lawyer who can help present a strong, well-supported application. If you need assistance with a modification or enforcement, visit our legal advice page.
Where can I learn more about custody and parenting law?
You can learn more about custody rights and how they are applied in South Africa by speaking to a qualified family law attorney. At Andrew Scott Attorneys, we offer clear, practical legal advice tailored to your unique circumstances. Whether you’re planning ahead or facing a current challenge, we’re here to help you protect your child’s best interests and your parental rights.
For a broader overview, visit the Wikipedia article on child custody to explore how these principles are applied internationally.
