In South Africa, the Children’s Act of 2005 governs matters relating to the care, contact, and guardianship of children. When parents divorce, the court will consider the best interests of the child when making decisions about custody, access, and guardianship.
Types of custody
Primary residence refers to where the child will live permanently, and it is the responsibility of the primary caregiver to provide the child with day-to-day care. Contact refers to the right of the non-residential parent to see and communicate with the child. The amount of contact time depends on the specific circumstances of each case, but it is generally encouraged for both parents to have a meaningful relationship with the child.
- Primary residence
Primary residence (formerly known as “custody”) refers to where the child will live permanently. The parent with whom the child lives will have primary responsibility for the child’s day-to-day care, such as feeding, bathing, and providing a safe and secure home environment. This parent is also responsible for making decisions about the child’s welfare, such as decisions about healthcare and education. In most cases, the primary caregiver will be the parent who has been the child’s primary caregiver since birth, or who has been the primary caregiver during the relationship.
- Contact
Contact (formerly known as “access”) refers to the right of the non-residential parent to see and communicate with the child. The amount of contact time depends on the specific circumstances of each case, but it is generally encouraged for both parents to have a meaningful relationship with the child. Contact can take many forms, such as overnight visits, weekends, holidays, and regular phone calls or video chats. In some cases, the court may order supervised contact, where the non-residential parent can only see the child in the presence of a third party.
But what about joint custody?
In South Africa, joint custody is not a legal term that is used to describe a specific type of custody arrangement. However, the Children’s Act provides that both parents have equal rights and responsibilities with regard to their children, regardless of whether they were married or not. This means that both parents have a say in decisions about the child’s upbringing, including decisions about education, healthcare, and religion.
In practice, this often means that parents work together to make decisions about their child’s welfare, even if they do not live together. For example, both parents may be involved in decisions about which school the child will attend, or which medical treatment the child will receive. The parenting plan should set out how these decisions will be made, and who will be responsible for making them.
However, in terms of primary residence, the child will usually live with one parent, and the other parent will have contact with the child. In some cases, parents may agree to a shared care arrangement, where the child spends equal time with both parents. This is not considered joint custody, but rather a specific type of parenting plan that is agreed upon by both parents and is in the best interests of the child.
Ultimately, the type of custody arrangement that is best for the child will depend on the specific circumstances of each case. The court will consider a range of factors when making a decision about custody, and will make an order that is in the best interests of the child.
Is the high court the ultimate guardian of all children?
Yes, that is correct. In South Africa, the High Court has ultimate jurisdiction over all matters concerning children. This means that the High Court has the power to make decisions about custody, guardianship, and care of all children in the country. The Children’s Act provides that the High Court has jurisdiction over all matters relating to children, including custody, guardianship, and access disputes, as well as matters relating to child protection.
In practice, however, most custody and access disputes are heard in the lower courts, such as the Magistrate’s Court or the Family Court. The High Court will usually only hear cases that are particularly complex or have significant implications for the child or children involved.
Best interests of the child
The best interests of the child is the guiding principle when determining custody. This means that the needs and well-being of the child are given priority over the rights and wishes of the parents. When making a custody decision, the court will take into account factors such as the child’s age, health, emotional and educational needs, and the relationships that the child has with each parent.
here are some examples of factors that a court may consider when determining the best interests of the child:
- The child’s age and stage of development: Young children may require more frequent and consistent contact with both parents, while older children may be better able to handle longer periods of separation from one parent.
- The child’s relationship with each parent: A court may consider the strength and quality of the child’s relationship with each parent, and whether the child has a preference for one parent over the other.
- The child’s emotional needs: A court may consider whether one parent is better equipped to provide emotional support to the child, or whether one parent has a history of neglect or abuse.
- The child’s educational needs: A court may consider which parent is better able to provide for the child’s educational needs, such as helping with homework or providing a stable environment for studying.
- The child’s health and medical needs: A court may consider which parent is better able to provide for the child’s health and medical needs, such as taking the child to doctor’s appointments or administering medication.
- The child’s cultural and religious needs: A court may consider whether one parent is better able to provide for the child’s cultural and religious needs, or whether the child has a preference for one parent’s cultural or religious beliefs.
- The child’s safety: A court may consider whether one parent has a history of violence or abuse, or whether one parent is more likely to provide a safe and stable environment for the child.
It’s important to note that these are just some examples of factors that a court may consider when determining the best interests of the child. Each case is unique and will be decided on its own facts and circumstances.
Parenting plan
A parenting plan is a written agreement between the parents that outlines the arrangements for the child’s care and contact with each parent after a divorce or separation. The parenting plan is a legal document and is submitted to the court for approval, but it is not a court order.
The parenting plan sets out the specific arrangements for things like where the child will live, how often the child will see each parent, and who will be responsible for making decisions about the child’s education and health. The parenting plan should also take into account the child’s age, maturity, and stage of development.
The purpose of a parenting plan is to provide a framework for co-parenting after a divorce or separation. By agreeing to a parenting plan, both parents are able to have input into the decisions that affect their child’s life, and are able to work together to ensure that the child’s best interests are being met.
It’s important to note that a parenting plan is not required by law, but it is strongly encouraged. If the parents are unable to agree on a parenting plan, the court will make a custody and access order based on the best interests of the child. A parenting plan that is in the best interests of the child is more likely to be approved by the court than an order that is imposed on the parties.
Going to court
If the parents are unable to reach an agreement on custody and access, they can go to court to seek a custody order. The process of going to court will depend on the specific circumstances of the case, but generally involves the following steps:
- Filing an application: The parent seeking a custody order will need to file an application with the court, outlining the specific relief that they are seeking. The application will need to include information about the child, the parties, and the nature of the dispute.
- Serving the application: Once the application has been filed, it will need to be served on the other parent. This means that the other parent will be given a copy of the application and will have the opportunity to respond.
- First court appearance: The parties will be required to attend a court appearance, where the court will attempt to facilitate a settlement between the parties. If a settlement is not possible, the court will set a date for a trial.
- Investigation or assessment: In some cases, the court may order an investigation or assessment to be conducted before the trial. This may involve speaking to the child, interviewing the parties, and gathering information about the child’s needs and circumstances.
- Trial: The trial will be heard by a judge, who will make a decision based on the evidence presented. The parties will have the opportunity to present evidence and call witnesses. The judge will consider a range of factors, including the best interests of the child, and will make an order that is in the best interests of the child.
- Enforcement: Once a custody order has been made, the parties will be required to comply with the terms of the order. If one party fails to comply, the other party can apply to the court to enforce the order.
It’s important to note that going to court should be a last resort, as it can be a stressful and expensive process. In most cases, it is better for the parties to try to reach an agreement through mediation or other forms of dispute resolution. However, if a custody order is necessary, the court will make a decision based on the best interests of the child.
Equal rights and responsibilities
Both parents have the right to make decisions about the child’s upbringing, including decisions about education, healthcare, and religion. This means that both parents should be consulted and have a say in important decisions that affect the child’s life.
The right to maintain contact with the child
Both parents have the right to maintain a relationship with the child, and to have regular contact with the child. This includes the right to visit the child, communicate with the child, and spend time with the child.
The right to access information about the child
Both parents have the right to access information about the child, such as school reports, medical records, and other important documents. This means that both parents should be kept informed about the child’s progress and well-being.
The right to apply for custody, guardianship or care of the child
Both parents have the right to apply for custody, guardianship or care of the child, regardless of whether they were married or not. This means that both parents have equal rights and responsibilities with regard to their children.
In terms of when a parent can lose their rights, it is important to note that the best interests of the child is always the paramount consideration. If a parent is deemed to be unfit or incapable of caring for the child, they may lose some or all of their rights. For example, if a parent has a history of abuse or neglect, the court may restrict their access to the child or even terminate their parental rights. Additionally, if a parent fails to comply with a custody order or parenting plan, they may be held in contempt of court and could face consequences such as fines or imprisonment.
Changing a custody order
Once a custody order has been made, it can be changed if there is a significant change in circumstances that affects the child’s best interests. For example, if one parent wants to move to a different city or country, this may require a change in custody arrangements. The court will consider whether the change is in the best interests of the child before making a decision.
Mediation
In some cases, the court may refer the parents to mediation in an effort to resolve their dispute outside of court. Mediation is a process in which a neutral third party (the mediator) helps the parents to reach an agreement on custody and contact. Mediation can be a more cost-effective and less adversarial way of resolving disputes, and can also help to preserve the relationship between the parents and the child.
Final Thoughts
The custody of children is an important issue that requires careful consideration and legal guidance. If you are going through a divorce and have children, it’s important to work with an experienced family law attorney who can help you navigate the legal process and advocate for the best interests of your children. With the right legal support, you can achieve a custody arrangement that works for you and your family.
