When parents separate, the most important questions are usually about the children. Where will they live? How much time will they spend with each parent? Who makes decisions about schooling, health and religion?
South African law no longer speaks of “custody” and “access”. Since the Children’s Act 38 of 2005, the language is care, contact and guardianship, and everything is decided by one overriding principle: the best interests of the child.
Parental responsibilities and rights
Section 18 of the Children’s Act describes four components of parental responsibilities and rights:
- Care: day-to-day responsibility for the child, including providing a home, guidance and meeting the child’s needs.
- Contact: maintaining a personal relationship with the child, through visits, time together and communication.
- Guardianship: administering the child’s property and assisting or representing the child in legal matters, including consenting to the child’s marriage, adoption, removal from South Africa and passport application.
- Maintenance: contributing financially to the child’s support.
A parent may hold all or only some of these. For example, one parent may have primary care, while both parents remain co-guardians.
Who has parental responsibilities and rights?
- Mothers automatically have full parental responsibilities and rights (section 19).
- Married fathers automatically have full parental responsibilities and rights if they were married to the mother at the time of conception, birth or afterwards (section 20).
- Unmarried fathers acquire full parental responsibilities and rights under section 21 if they lived with the mother in a permanent life-partnership when the child was born, or if they consent to be identified (or apply to be identified) as the father, and contribute or have attempted in good faith to contribute to the child’s upbringing and to the child’s maintenance for a reasonable period.
Where there is a dispute about whether an unmarried father meets the section 21 requirements, the matter must be referred for mediation before it goes to court. Parents may also agree on responsibilities and rights in a parental responsibilities and rights agreement (section 22), which must be registered with the Family Advocate or made an order of court.
The best interests of the child
Section 7 of the Children’s Act lists the factors relevant to a child’s best interests. They include:
- the nature of the relationship between the child and each parent;
- each parent’s attitude towards the child and towards the exercise of parental responsibilities;
- each parent’s capacity to provide for the child’s needs, including emotional and intellectual needs;
- the likely effect on the child of a change in circumstances, including separation from a parent or siblings;
- the child’s age, maturity, gender, background and any special needs;
- the need for the child to maintain a connection with family, culture and tradition; and
- the need to protect the child from harm, including abuse and family violence.
The child’s voice
Under section 10, every child who is of an age, maturity and stage of development to participate must be given an opportunity to express views, and those views must be given due consideration. This does not mean the child decides. It means the child’s views are taken seriously, often through the Family Advocate, a social worker, a psychologist or a legal representative appointed for the child.
Co-holders must consult
Where more than one person holds parental responsibilities and rights, section 31 requires them to give due consideration to each other’s views before making major decisions. These include decisions that are likely to significantly change, or have an adverse effect on, the child’s living conditions, education, health or relationship with a parent. For certain decisions, including the child’s removal from South Africa, the consent of all guardians is required. See our article on travelling and relocating with children.
Parenting plans
Co-holders of parental responsibilities and rights who are experiencing difficulties are encouraged to agree on a parenting plan (sections 33 to 35). A parenting plan typically covers:
- where the child will live and the contact schedule;
- school holidays, public holidays, birthdays and special occasions;
- communication with the absent parent (calls, video calls and messaging);
- decision-making on schooling, healthcare and religion;
- maintenance and payment of expenses; and
- how future disputes will be resolved, for example through a mediator or parenting coordinator.
A parenting plan may be registered with the Family Advocate or made an order of court. A well-drafted plan reduces conflict because both parents know exactly what is expected.
The Family Advocate
The Office of the Family Advocate plays a central role in disputes about children, especially in divorce matters. The Family Advocate can:
- mediate between parents;
- interview the parents and children;
- investigate and report to the court with recommendations; and
- assist with parenting plans.
Courts give significant weight to the Family Advocate’s recommendations, although they are not binding.
Resolving disputes
Most disputes are best resolved through negotiation or mediation. Where that fails:
- the Children’s Court can deal with many care and contact issues;
- the High Court, as the upper guardian of all minor children, can make any order in a child’s best interests, often within divorce proceedings; and
- interim relief may be sought through a Rule 43 application where a divorce is pending.
In high-conflict cases, courts may appoint a parenting coordinator to help implement orders and resolve day-to-day disagreements, or order expert assessments by psychologists.
Practical tips
- Keep the children out of the conflict. Do not discuss the litigation with them or use them as messengers.
- Communicate in writing where tension is high, and keep messages respectful. They may be read by a judge.
- Follow existing arrangements until they are changed by agreement or court order.
- Focus on the child’s needs, not on “equal time” for the parents. Courts decide on the child’s interests, not parental fairness.
How O’Reilly Law can help
We help parents negotiate and draft parenting plans and parental responsibilities agreements, and represent clients in Children’s Court, High Court and Family Advocate processes, including urgent applications where a child’s safety is at stake. Contact us to discuss your situation.
Related reading: Getting divorced in South Africa · Travelling and relocating with children
This article is general information and not legal advice. Every family’s situation is different. Correct as at October 2026.