Child Custody Disputes

Note: The Children’s Act of 2005 (hereinafter “the Act”) has substituted the common law principle of “custody” with the concept of “care”. Since people are more familiar with the term “custody”, we opted to use these terms for the purpose of this page.

What does custody of a child mean?

The Children’s Act of 2005 (hereinafter “the Act”) has substituted the common law principle of “custody” with the concept of “care”. “Care” has a much more general definition, which includes the common law understanding of “custody”. “Care” is defined in the Act as:

  • within available means, providing the child with:
    • a suitable place to live;
    • living conditions that are conducive to the child’s health, wellbeing and development; and
    • the necessary financial support;
  • safeguarding and promoting the wellbeing of the child;
  • Protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
  • respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
  • guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
  • guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
  • guiding the behaviour of the child in a humane manner;
  • maintaining a sound relationship with the child;
  • accommodating any special needs that the child may have; and
  • generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.”

Both parents to a marriage are automatically clothed with the responsibility and right to care for (have custody of) their child. Joint care or custody may continue to vest in both parents after divorce or separation, if it is so ordered by the court. In respect of an extra-marital child, however, care or custody vests in the biological mother of the child alone. Care or custody will vest in the father if the father of that child was living with the child’s mother in a “permanent life-partnership” at the time of the child’s birth or if the court granted him such parental responsibilities and rights subsequent to an application mentioned in terms of Section 21 of the Act.

The Rights of Unmarried Biological Fathers

In accordance with the provisions of the Children’s Act, the biological father of a child who does not have care of the child, due to the fact that he is the unmarried father of that child, acquires full care in respect of that child:

  • if at the time of the child’s birth he is living with the mother in a permanent life- partnership; or
  • if he, regardless of whether he has lived or is living with the mother-
    • consents to be identified or successfully applies in terms of Section 26 of the Children’s Act, to be identified as the child’s father or pays damages in terms of customary law;
    • contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
    • contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Section 26 of the Children’s Act entitles a person who is not married to the mother of a child and who is or claims to be the biological father of the child, to apply to a court for an order confirming his paternity of the child and for such an amendment to be affected to the registration of birth of the child if:

  • the mother refuses to consent to such an amendment;
  • the mother is incompetent to give consent due to mental illness;
  • the mother cannot be located or is deceased.

The care or custody of a child may also be assigned by a parent in terms of Section 27 of the Children’s Act. A parent who has the sole care of a child may appoint a fit and proper person to be vested with care or custody of the child in the event of the death of that parent – this, however, must be contained in a valid will made by the parent.

Parental Responsibilities and Agreements

In terms of Section 22 of the Act, the mother of a child or other person who has care or custody of a child, may enter into an agreement providing for the acquisition of such care or custody as are set out in the agreement, with:

  • the biological father of the child who does not have parental responsibilities and rights in respect of the child by virtue of neither being married to the child’s mother, nor in accordance with Section 21 of the Act or a Court order; or
  • any other person having an interest in the care, well-being and development of the child.

A parental responsibilities and rights agreement must be in the prescribed format and must contain the prescribed particulars as provided for by the Children’s Act. Such an agreement, however, only takes effect if:

  • it is registered with the Office of the Family Advocate;
  • made an order of the High Court either on application or during divorce proceedings; or
  • made an order of the Children’s Court on application by the parties to the agreement.

Prior to registering a parental responsibilities and rights agreement or declaring it an order of court, the Office of the Family Advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child. The Office of the Family Advocate will conduct an investigation pertaining to the child’s best interest and will subsequently file a report to the relevant court with its recommendations.

It is important to note that a parental responsibilities and rights agreement differs from a parenting plan. The former may be entered into and between the mother of a child and the biological father of a child or any other person having an interest in the care, well-being and development of the child neither of whom (the biological father or other person) previously possessed such parental responsibilities or rights. A parenting plan is entered into between parties whom already possess parental responsibilities and rights, such as parents of a child conceived and born from a marriage between his/her parents.

Assignment of Custody and Access to Interested Person by Order of Court

Any person who has an interest in the care, well-being or development of a child, may apply to the High Court, a Divorce Court in divorce matters, or the Children’s Court, for an order granting him or her, on such conditions as the court may deem necessary, contact with or care of the child. A court will consider an Applicant’s request for care or contact, regardless of the Applicant’s sexual orientation, religious views or other discriminatory factor.

When considering such an application, the court must take into account:

  • the best interests of the child;
  • the relationship between the Applicant and the child, and any other relevant person and the child;
  • The degree of commitment that the Applicant has shown towards the child;
  • the extent to which the Applicant has contributed towards the expenses in connection with the birth and maintenance of the child; and
  • any other factor that should, in the opinion of the Court, be taken into account.

The Advocate may request the Office of the Family Advocate, a social worker or a psychologist to assist it with a report and recommendations as to what is in the best interests of the child as it is not always possible for the court to determine on the papers before it, what the best order will be pertaining to the child and his/her best interests.

Our family and divorce lawyers understand the emotion and stress which accompanies these disputes. As a result, we have ensured that we possess all the required resources to assist our clients swiftly in these disputes with the required skill and strategies and often on an urgent basis. For us the best interest of the child is paramount and we are skilled in providing assistance to avoid children being used as pawns in divorce proceedings and other disputes between their parents. We support this statement with the indemnification that we are not child psychologists and are not equipped to assess any child during any dispute between parents, however we are well-equipped to know exactly when a child should be referred to an expert child psychologist who will be able to assist us by obtaining the best possible outcome for your child in terms of South Africa’s legal framework.

Need Assistance?

Should you require our assistance with a custody dispute, please e-mail us at divorce@barnardinc.co.za.

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