Parents have an inherent right and duty to form part of their child’s lives. However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interest. More often than not, when parents are divorced, separated or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children. These issues may range from the amount of contact the other parent has, the school the child may attend, or what extra-mural activities the child should pursue. 

In South African law, child custody is settled according to the Children’s Act 38 of 2005. 

The terms used to refer to the rights and duties of parents to their children are referred to as “parental responsibilities and rights”. 

These are defined in Section 18 the Children’s Act, as per the below:

(1) A person may have either full or specific parental responsibilities and rights in respect of the child

(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right-

1. To care for the child;
2. To maintain contact with the child; 
3. To act as a guardian of the child; and
4. To contribute to the maintenance of the child

All parents of children should by default have certain parental responsibilities and rights to their children. It often happens that parents who are co-holders of parental responsibilities and rights, are unable to agree on how their rights should be exercised. Should that happen, then according to Section 33 and 34 of the Children’s Act, they should try to agree on a parenting plan. 

If the parents cannot agree on a parenting plan, then a court may have to be approached. Usually the parents would approach the High Court, or the Children’s Court in their area of residence. In South Africa, one does not have to make use of legal representation. In other words, you may represent yourself in Court. Many times, this applies as you do not have a choice as you cannot afford legal representation. 

Each magisterial area has a Children’s Court dealing with children’s matters. The Children’s Court would be best suited for parents who would prefer to conduct their own case. When you approach the Children’s Court, they provide you with forms to fill in – they would assist you with the process. They will then issue a summons/notice to the other parent to appear at the Court. Many attorneys also prefer to use the Children’s Court, as opposed to the High Court, when enforcing their client’s parental responsibilities and rights.

The various types of custody:

1. Legal Custody –

Legal custody of a child means having the rights and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. Courts generally award joint legal custody, which means that the decision making is shared by both parents.

2. Physical Custody –

Physical custody means a child spends reasonable amounts of time with both parents, therefore allowing for both parents to play an active role in the child’s life. This could mean spending weekends with one parent and weekends with the other parent, or spending alternative weeks in each parent’s company. Where the child lives primarily with one parent and has visitations with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent. Joint physical custody works best if the parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. 

3. Sole Custody – 

By default, both parents normally exercise equal guardianship of their legal child, however a Court may grant sole custody to a single guardian depending on the circumstances of the case. In South Africa, if a Court grants sole custody to one parent, that parent becomes the guardian to the exclusion of the other. This means that if you have sole custody, you gain the legal right to make custodial decisions that would normally require both parents’ consent. The Courts do not grant sole custody easily, however in cases where one parent is deemed to be found unfit – for example, because of alcohol or drug dependency or chargers of child abuse or neglect, the court may grant sole custody.

4. Joint Custody – 

Parents who don’t live together have joint custody (also known as shared custody) where they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint Custody may be:

• Joint legal custody
• Joint physical custody (where the children spend a significant portion of time with each parent), or
• Joint legal and physical custody

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

When parents share joint custody, usually they work out a schedule according to their work requirements, housing arrangements and their children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment. Other joint physical custody arrangements include:

• Alternating months, years, or six-month periods, or
• Spending weekends and holidays with one parent, while spending weekdays with the other.

Joint custody has the advantage of assuring the children continuing contact and involvement with both parents, and it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:

• Children must be shuttled around
• Parental non-cooperation or ill will can have serious negative effects on children
• Maintaining two homes for the children can be expensive

If you do have a joint custody arrangement, maintain detailed and organised financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point the other parent may claim that he or she has spent more money on the kids than you have, and a judge will appreciate your detailed records.

5. Bird’s Nest Custody- 

Bird’s nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their time out in separate housing of their own.

How does the Court come to its decision?

There are various pertinent issues that the courts look at when deciding how contact or visitation should be exercised, they include:

Child Abuse-

Child Abuse has many facets, it is not only physical but psychological and emotional as well.

Unfit Parenting-

Not all parents are fit enough to care for a child primarily, this is especially so if there is a history of irresponsible parenting.

Living Conditions-

The law in no way discriminates against parents based on their living conditions, however it is a factor which is considered in Child Custody Cases.

Psychiatric Disorders-

Psychiatric disorders, in many cases, play a role in deciding how care and contact should be exercised. If the condition is severe, a court would have to factor it when making its decision.

The Court (both the Children’s and High Court) would listen to both parents, and any expert appointment. Usually the expert would provide a report. These experts often are from the Office of the Family Advocate, or a state appointed social worker. After looking at, and hearing everything, the court would make a decision based on what is in the child’s best interest.