Advocate Muhammad Abduroaf Attorney Appeal Constitutional Court Supreme Court

Is it possible for an unmarried father to obtain full custody of a 10-year-old child and not the mother? – A simplified family lawyer’s perspective.
By Advocate Muhammad Abduroaf There is a common misconception that if a child was born out of wedlock; only the mother can be the primary caregiver of the child concerned. This may however generally be the case. However, it is presumed by some that if a mother cared for the child since his or her birth, the father would not be able to be the child’s primary caregiver. In other words, the child would always live with the mother, and never with the father. We do not blame our clients for thinking so. That is the stereotype. As the world changes, so does the law.

The popular scenario regarding single parenting?

We are often approached by fathers who have a child that was born out of wedlock. He and the mother most probably lived together when the child was born. But things did not work out between them. The mother moved out and lived with her parents or on her own. The father would then regularly have contact with the child. The type of contact would be decided by the mother. Now the question is, even if the child is 10 years old; is it possible for the child to be cared for by the father and live with him primarily? The answer to that is yes. This is so, as the law looks at what is best for the child concerned.

Best interests of the child principles when it comes to children

Both the South African Constitution and the Children’s Act, says that the child’s best interests are given priority. In other words, a child’s best interests are of paramount importance in matters relating to him or her. Therefore, for one to assume at the outset, that only mothers are the best primary caregivers, is not only incorrect but potentially dangerous when dealing in children’s matters. The law expects us to look at all factors, not only who historically looked after the child, but also, the possibility of whether the father can better care for the child. Moreover, as the child’s best interests are of paramount importance, deciding as to whether or not to move a child from the primary care of a mother to that of the father should not be done lightly. Therefore, even if the father, 10 years later, can on the face of it care better for the child than the mother, this should not be the deciding factor. One would also need to look at the emotional and psychological impact it would have on the child as well.

What would be an ideal situation where moving the child from the mother to the father would be warranted?

In our view, material comforts are not reason enough to move a child from the primary care of a mother to that of a father. If the father is a wealthy person, and the mother not, he can be ordered to pay more child support towards the minor child’s expenses. However, if the child is of a certain age, and he needs to have certain living conditions, and the father has it, then that would be a possible factor in granting the father primary care. For example, if the child is a gifted swimmer, and 17 years old, and in matric, and needs to train consistently, then it makes sense that the father’s living amenities may be an important factor to justify the movement of the child.

Obvious reasons to have the child primarily cared for by the father or another party

Then there is the obvious reason to move the child from the primary care of the mother to that of the father or another person. This would be because the mother is totally incapable of caring for the minor child. She may have developed a mental illness, be admitted to a drug rehabilitation facility, or neglects the child whilst in her care. In such a case, one would look at the father. If he too has issues, then the child would need to be placed in alternative care. For example, foster care, or with another relative.

Is it possible for an unmarried father to obtain full custody of a 10-year-old child?

From the above, it is clear that it is possible for an unmarried father to obtain full custody of a 10-year-old child. It all depends on the facts of the matter. Whilst mothers may be best to care for the child in his or her early age of development, once should not lose sight of the fact that the father could care better for the child. If he cannot, then the child should remain in the primary care of the mother.

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Posted on 11 February 2025 by Telelaw

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