The most emotive aspect of divorce is undoubtedly child custody. Technically, that term is no longer accurate. The Children’s Act 38 of 2005 refers to “care” and “contact”, because a child is not a property over which a parent has ownership or rights. A child is a developing human being whose best interests come first. We use the words “child custody” because it is a familiar term, but “care” is a more accurate description of a parent’s responsibility towards their child.
What exactly is child custody?
The law makes a distinction between custody and guardianship, and between legal custody and physical custody. Let’s explain these terms:
Guardianship is an adult’s right and responsibility to:
- Manage a child’s interests
- Manage any assets or financial aspects of the child’s life
- Assist the child in legal or contractual situations
- Give consent to the child’s medical treatment, marriage or adoption
- Give consent for the child to travel out of South Africa
The High Court is the legal upper guardian of all children in South Africa. South African courts normally grant guardianship to both parents as part of the divorce settlement. In certain circumstances, the court may grant sole guardianship to one parent or someone who is not the biological parent. This generally only happens if one or both parents are unable or unfit to care for the child, for example if there is a history of violence or substance abuse. If a guardian fails to fulfil their duties the High Court can be approached to intervene and can terminate a guardianship and transfer care of the child to another person or parent.
Physical custody means physical control over the child and supervision of their daily life and living arrangements. The custodial parent provides the child with:
- Food and support
- Day-to-day needs
- A home
Married parents share custody. On divorce, they must make a decision about who will provide the primary residence for the child, i.e. have custody. If the child lives with one parent most of the time, that parent has sole custody. The other parent has contact rights (otherwise known as access or visitation rights).
Joint custody means the child’s residential time is divided equally between both parents. This can work if the parents live close to each other and the child’s school. It also tends to be more suitable for older children who understand what’s going on and are able to be part of the decision-making process. It may be too disruptive for a baby or toddler. In practice it is usually more manageable to have a primary residence and regular contact with the non-custodial parent.
Legal custody is the right to make decisions about the child’s upbringing. Normally both parents have legal custody, unless there is a reason not to grant this.
Contact with a child refers to the non-custodial parent’s right and privilege to see and spend time with their child. Divorce agreements usually grant the non-custodial parent reasonable contact time, but it is a good idea to define what is regarded as reasonable in the specific circumstances. The parent who has custody may not impose unreasonable conditions or restrictions on contact. The details may be specified in a parenting plan.
When parents can’t agree on the care arrangements for children, the court may require a parenting plan to be drawn up, but this is a good idea even if the divorce is not acrimonious. The parenting plan describes the roles and powers of each parent, and includes a time schedule, which dictates when the child will be with each parent. It may also include details of school and religious holiday arrangements. Parenting plans should be reviewed from time to time, as the child grows and circumstances change. The review date should be specified in the parenting plan. All arrangements are premised on the best interests of the child. The convenience of the parent may be considered but is not the priority. The opinion of the child is taken into account if they have the emotional and intellectual maturity to have a well-informed view.
Best interests of the child in child custody cases
The primary concern of the court is the best interests of the child. As upper guardian of children in South Africa, the High Court will prioritise the situation that will best provide for the comfort and well-being of the child, with the least upheaval to their life. The court does not automatically grant custody to the mother, although historically that was more common and is still the norm in South Africa. But fathers can and do apply for sole custody successfully.
The court has a duty to assess every child custody case on the facts. Child care and contact is dealt with on a case-by-case basis and the facts are examined in their entirety, to ensure the final outcome represents the best interests of the child. These interests are not always obvious to the outsider, and the court’s decision may seem illogical to someone not in full possession of the facts. For example, international relocation may appear to be disruptive. But if that relocation leads to a more settled, prosperous household for the child’s upbringing, with a supportive extended family nearby, the court might rule that it is in the child’s best interests.
Office of the Family Advocate
The Family Advocate is a state official who helps divorcing couples reach agreement on disputed issues, namely child custody, contact, and guardianship. When divorcing parents can’t agree, the Family Advocate, often in conjunction with a social worker, reviews the circumstances in terms of the best interests of the child. The Family Advocate makes a recommendation to the court with regard to full custody of the child, joint custody, contact or guardianship. They will often approve the parenting plan.
Maintenance and child custody
Maintenance for a child is not linked to custody or contact. All children have the right to receive financial maintenance and both parents have a duty to contribute to the child’s upbringing. Maintenance is not linked to the amount of time a parent spends with their child and no one can refuse to pay maintenance as a means of bargaining for contact time. Maintenance amounts are calculated according to the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. How much each parent will pay will depend on how much they earn. It is also based on the cost of the child’s education, care and upbringing. Maintenance orders are orders of the court and failure to pay court-approved maintenance is a criminal offence.
Divorce attorneys who care
SD Law and Associates are experts in family law in Cape Town and Johannesburg. We have extensive experience of helping couples divorce in a respectful, dignified manner. We act in the best interests of the child in all cases but always strive to reach an agreement that all parties are comfortable with. Contact family lawyer Simon Dippenaar on 086 099 5146 or email email@example.com. For more information on child custody in South Africa, see Who will care for your child after divorce? and International child custody.