What You Need to Know About Child Custody

In accordance with South African law, childcareis settled according to the Children’s Act. Whether you are seeking legal counsel or opting for a DIY divorce, it is essential that you familiarise yourself with the legal implications and requirementsof sole vs joint custody.

Keep reading for a cliff notes version of what to expect when it comes to child custody in South Africa:

The Guiding Principle You Need to Know About

While there is a lot to unpack for all parties involved,the main guiding principle is the child’s best interest. Every child has the constitutional right to be cared for within their best interest. This is the frontrunning factor in child custody cases in the realm of family law here in South Africa.

The superseding factors involved in childcare developments according to the Children’s Act, Act 38 of 2005 are listed as:

  • Relationships between all parties involved
  • Practical elements of child custody such as expenses, living arrangements, etc.
  • The child’s security
  • The child’s background and characteristics
  • Medical and family history

Further breakdowns of these factors can be found on the South African Government’s website.

What Child Custody Could Mean For You

If you are seeking joint or sole custody of your child or children, there are a few terms that you need to know and understand. One of these terms is ‘contact’ which is determined as maintaining a personal relationship with the child whether this is by communicating on a regular basis in person or via postal or electric communication like Skype, phone calls, etc.

The ‘levels’ of contact are categorized as the following:

  • Shared contact – This is a collaborative agreement whereby both guardians have the responsibility to raise their child.
  • Indirect contact –This is where contact is allowed through mediums such as telephones, lettersor email.
  • Phased-in contact –This category is determined by a child’s growth. As they age, their needs will shift and so will the ability to facilitate greater levels of contact.
  • Supervised contact – Contact with the child is allowed, but under supervised conditions.
  • Defined contact – This level of contact is defined by set limitations and directions that need to be adhered to in accordance with the custody agreement.
  • Reasonable contact –While this does not mean unlimited contact, it is the most laxcategory which takes into account what is reasonable, such as circumstances, wished and the child’s age.

Guardianship is another term that you need to know as it determines the responsibilities of a parent but does not necessarily mean that the guardian has care or contact with the child. The rights and responsibilities of guardianship are to:

  • administer and protect their property or property interests;
  • represent or assist administrative, contractual and other legal matters;
  • provide or refuse any consent required by South African law in respect of the child,
  • consent to the application for a passport; and
  • consent to the alienation of any immovable property.

A child can either have a sole guardian or co-guardians. This will be dependent on your intensions and the ruling of your case.

If you are seeking custody of your child, you will need to approach the court. The final decision of the Court (Children’s Court as well as the High Court)is based on various factors and testimonies and a decision will be made in the child’s best interest.

Do you have any questions about child custody? Our attorneys are experts in family law including child custody law. Get in touch with the Law Offices of Karen Olivier to learn how we can help with your child custody case.