Frequently asked Child Custody and Guardianship Questions, answered by Adv. Muhammad Abduroaf, Advocate of the High Court of South Africa

Parents who are separated or having difficulties in their marriage or relationship often have questions regarding issues regarding child custody, care, visitation, and guardianship. Below are a few questions that Adv. Muhammad Abduroaf attempt to answer.

What is the most common child custody agreement?

The most common child custody agreement is for one parent to have primary care and for the other to have reasonable contact. That basically means the child would be cared for by one parent during the school week, and the other parent would have visitation rights every other weekend. Sometimes visitation would be during the week as well. Regarding school holidays, each parent would care for the child equally if possible. That would mean that the school holidays would be split in half.

There are many variations to the above. However, the idea is that one parent would care for the child’s day-to-day needs and would be the first point of call for the child. For example, should the child fall ill at school, then the primary caregiver would be first contacted. That parent would also ensure that the child does their homework, attend sport, etc. The other parent may assist with schoolwork and assignments while caring for the child.

At what age can a child refuse visitation in South Africa?

Children need to listen to their parents. The opposite also applies. However, the difference is that parents know what is best for their children. Once the child turns 18 and is an adult, they can decide when and with whom they want to have contact. If, however, a child is afraid to have contact with a parent, then in such a case, the matter needs to be looked into. It may be best that the child sees a social worker or psychologist to determine the root of the problem and work from there.

How does guardianship work in South Africa?

Guardianship refers to legal matters concerning a child’s life. For example, a child’s legal guardian would consent to a child obtaining a passport or buying a house. Consent is also required for a child to undergo specific medical procedures and international travel. As you can see, guardianship has nothing to do with the visitation of a child. Therefore, a parent can have visitation rights but no guardianship rights.

What do judges look for in child custody cases in South Africa?

In all matters concerning children, the court or the judge is only concerned with what is in the child’s best interest, and not what is in the parent’s best interest. Therefore, whenever a judge has to decide regarding care, contact or anything related to the well-being of the minor child, it needs to make it based on what it believes is in the child’s best interests.

Are fathers entitled to 50/50 custody?

Fathers and mothers are entitled to 50/50 custody if the facts allow it. 50/50 is also sometimes referred to as shared care. If 50/50 is in the child’s best interests, the court will make such an order. If, for example, a parent lives far away from the child’s school, and that parent also needs to be at work very early, it would not make sense for that parent to have shared care over the minor child.

What is a realistic custody agreement?

A realistic custody agreement is one that would work for your specific family. Each family is different; therefore, what would work for one family would not necessarily work for another. Some parents work from home, and others work abroad. Furthermore, some parents are unable to assist children with schoolwork. Therefore, whatever custody agreement would work and be in the child’s best interests is best.

At what age will a judge listen to a child in South Africa?

If the child is mature enough, and there is a need for it, the court would listen to the child. However, usually, it depends on other experts’ interactions with the child—for example, the Office of the Family Advocate or a social worker who would provide a report.

How can a mother lose custody in South Africa?

If the mother has custody or primary care over the minor child, she can lose custody if she cannot be the primary caregiver. She may also lose custody if the other parent is better equipped to care for the minor child. For example, the mother now must work long hours and is away at work more often. The court may decide that it is best for the father to care for the minor child if he can do so.

Is South Africa a 50/50 custody State?

South Africa does not follow the 50/50 custody principle, and it makes a custody order based on all the information before it and on what is in the child’s best interests.

What is considered an unfit parent in South Africa?

An unfit parent neglects a child. Not everyone has the same income or wealth, so a parent who cannot purchase everything the child wants is not seen as unfit. However, if that parent puts the child in harm’s way or neglects the child, that parent would be seen as an unfit parent.

How do you win a custody battle with a narcissist?

Whether or not the other parent is a narcissist, the principles applicable to winning a child custody case would remain the same. It would help if you focused on the child’s best interests and nothing else. The court would pick up that the other parent is a narcissist. However, that does not mean you will win your case. A narcissist that can care well for the child should care for the child. Therefore, focus on aspects showing that you can care better for the child.

What access do fathers usually get?

Historically, the father usually received reasonable contact, which usually entailed contact every second weekend, on special days and half the holidays. The law and society have evolved so that many fathers are primary caregivers, and the mothers are the ones who receive reasonable contact. No matter what the gender of the parent is, the law looks at what is best for the child concerned.

How do you calculate child custody?

You would calculate child custody by the amount of time a parent would spend with a child during the month. For example, if a parent has contact with a child every second weekend, that would mean that the parent cares for the child 4 to 5 days a month.

How can I gain full custody of my child?

Any parent can gain full custody of their child if they can prove it would be in their best interests. No court would give full custody to a parent who cannot care well for the child. The law does not look at the amount of money you have as the court can always order the other parent to pay more child support.