Who Gets Custody? Understanding the Best Interests of the Child
One of the most emotional and misunderstood aspects of divorce and separation is the question:
“Who gets custody of the child?”
Many people still believe that mothers automatically receive custody, or that fathers have fewer rights. However, South African law does not favour one parent over the other. Instead, the courts focus on one guiding principle: What is in the best interests of the child?
Understanding this principle can help parents make informed decisions and prioritise what truly matters – the well-being of their children.
What Does "Custody" Mean Today?
The term “custody” is still commonly used, but South African law now refers to:
- Care
- Contact
- Parental Responsibilities and Rights
These concepts are governed primarily by the Children’s Act 38 of 2005.
The Most Important Principle: The Child's Best Interests
The cornerstone of South African family law is:
“The best interests of the child are of paramount importance in every matter concerning the child.”
(Section 9 of the Children’s Act 38 of 2005)
This means that every decision involving a child must prioritise the child’s wellbeing above the wishes of either parent.
Does the Mother Automatically Get Custody?
No.
South African courts do not automatically favour mothers over fathers.
Each case is assessed individually based on:
- The child’s needs
- The child’s relationship with each parent
- Stability and continuity
- Emotional wellbeing
- Safety and security
The court’s focus is not on the parents’ preferences but on what arrangement best serves the child.
What Factors Does the Court Consider?
The Children’s Act provides guidance on factors that may be considered when determining the child’s best interests.
These include:
✔ The Child’s Relationship with Each Parent
The court considers the bond between the child and each parent.
✔ The Child’s Age and Development
The child’s stage of development and specific needs are taken into account.
✔ Stability
Courts generally favour arrangements that provide consistency and stability.
✔ The Ability of Each Parent to Care for the Child
This includes emotional, physical, educational, and financial support.
✔ The Child’s Safety
Any concerns regarding abuse, neglect, substance abuse, or domestic violence will be carefully examined.
Can Children Decide Where They Want to Live?
Not entirely.
The court may consider a child’s views depending on:
- Their age
- Their maturity
- Their ability to understand the situation
However, the child’s wishes are only one factor among many.
The final decision remains based on the child’s best interests.
What If Parents Agree?
What Happens If Parents Cannot Agree?
If parents can reach an agreement regarding:
- Care arrangements
- Contact schedules
- Holidays
- Schooling
the agreement can often be incorporated into a parenting plan or court order.
This is usually less stressful and more cost-effective than litigation.
If no agreement can be reached, the matter may be referred to:
- The Family Advocate
- A social worker
- Mediation
- The Children’s Court
- The High Court
The court may request investigations and reports before making a decision.
The Role of the Family Advocate
The Office of the Family Advocate assists the court by investigating what arrangements would best serve the child’s interests.
The Family Advocate may:
- Interview parents
- Speak to the child
- Obtain expert reports
- Make recommendations to the court
Common Misconceptions About Custody
❌ Mothers always get custody.
False. Courts assess each matter individually.
❌ Fathers have fewer rights.
False. Both parents have rights and responsibilities.
❌ The parent who earns more automatically gets custody.
False. Financial resources are only one factor.
❌ The child decides everything.
False. The child’s views are considered, but the court makes the final decision.
When determining who a child should live with, South African courts do not focus on what is best for the parents. Instead, every decision is guided by the principle that the child’s best interests come first.
Understanding your rights and responsibilities can help you navigate these difficult situations while ensuring that your child’s wellbeing remains the priority.
Reference List
- Children’s Act 38 of 2005
https://www.justice.gov.za/legislation/acts/2005-038%20childrensact.pdf - Constitution of the Republic of South Africa, 1996
https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf - Office of the Family Advocate
https://www.justice.gov.za/family/family_advocate.htm - Department of Justice and Constitutional Development
https://www.justice.gov.za - South African Government – Parenting and Child Care Services
https://www.gov.za/services/services-residents/family-and-children
Contact Us
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📧 chenique@opperman.law
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