Child Custody, Care and Contact Explained

Many parents still use the words "custody" and "access", and it is confusing to find that the law now talks about "care", "contact" and "guardianship". If you are separating, or you are an unmarried parent trying to see your child, knowing the right words helps you understand where you stand.

What is happening

The Children's Act 38 of 2005 replaced custody and access with parental responsibilities and rights. These are:

• Care: day-to-day looking after the child, including where the child lives, their safety, health and upbringing.
• Contact: keeping a relationship with the child, through visits, phone calls, video calls and holidays.
• Guardianship: making big legal decisions, such as consenting to a passport, travel out of the country, or selling property the child owns.
• Maintenance: contributing to the child's financial support.

Mothers automatically have full parental responsibilities and rights. Married fathers do too. Unmarried fathers get them automatically if they meet certain conditions in section 21 of the Act, for example if they lived with the mother in a permanent life partnership when the child was born, or if they have acknowledged paternity, contributed to the child's upbringing and paid maintenance in good faith. If the parents disagree about whether a father qualifies, the matter can go to mediation and then to court.

Parents can share care, or one parent can have primary residence while the other has contact. There is no automatic rule that the mother gets the children. Every decision is based on the best interests of the child, looking at things like the child's age, bond with each parent, stability, safety and, where the child is old enough, their wishes. Where parents cannot agree, they can use mediation, make a parenting plan, approach the Office of the Family Advocate, or apply to the children's court (at the magistrate's court) or the high court.

Signs to notice

• You and the other parent disagree about where the child should live
• You are an unmarried father and are being kept from your child
• The other parent wants to move to another town or country with the child
• Contact visits keep being cancelled or changed without notice
• You are unsure who needs to sign for a passport or school forms
• You have worries about the child's safety with the other parent

30-second self-check

Answer yes or no to each question.

• Is there no written agreement or court order about the child's care and contact?
• Has contact been refused or blocked in the last month?
• Is one parent planning to move far away with the child?
• Are you an unmarried father who is not sure of your rights?
• Is there any risk of harm to the child from either parent or someone in the home?
• Do handovers often end in arguments?

0-1 yes: Your arrangements seem to be working. Consider putting them in a written parenting plan.
2-3 yes: Things are unsettled. Mediation or a parenting plan could prevent bigger disputes.
4 or more yes: Get legal advice. If a child is at risk of harm, act on that first.

What you can do next

• Today: If a child is in danger, contact SAPS on 10111. Otherwise, write down the current arrangement and any recent problems with dates.
• This week: Try to agree a basic schedule in writing. Keep messages to the other parent short, polite and about the child only.
• This month: Consider mediation or a parenting plan. If that fails, visit the Office of the Family Advocate or get legal advice about the children's court.
• Do not withhold contact because maintenance is unpaid. The law treats these as separate issues.
• Do not take the child out of the country without the other guardian's consent or a court order.
• Keep the child out of adult arguments.

Your tool

Legal Needs Triage - a quick private check that sorts out what kind of family law problem you are facing, how urgent it is, and which professional or service is the right first stop.

When to get professional help

Get help if the other parent is refusing contact, planning a move, or has threatened to take the child. Get urgent help if you believe the child is being abused or neglected. A social worker or the police can act quickly to protect a child.

Who can help: family law attorney, accredited family mediator, Legal Aid SA, social worker, child psychologist

Getting help in South Africa

The Office of the Family Advocate and children's courts are part of the Department of Justice (justice.gov.za). Legal Aid SA (legal-aid.co.za) assists qualifying parents. Social workers at the Department of Social Development and child welfare organisations can help where there are safety concerns. Childline (116) is there for children who need support. The Cleared Mind Careline, 0800 212 146, can connect you to counselling during a stressful dispute.