Family Law

Guardianship

Guardianship is the legal right and responsibility to make important decisions on behalf of a child — including decisions about education, travel, and healthcare. It is distinct from custody/primary care.

Legal Definition

Under the Children's Act 38 of 2005, guardianship includes: administering the child's property, consenting to marriage, adoption, departure from South Africa, application for a passport, and alienating immovable property. Both parents of a child born in or out of wedlock generally have equal guardianship unless a court orders otherwise.

📖 Constitutional / Statutory Basis: Section 28, Constitution of the Republic of South Africa, 1996; Children's Act 38 of 2005

Practical Example

Divorced parents share guardianship. One parent wants to take the child abroad for two months. They need the other parent's written consent as co-guardian, or a court order.

Frequently Asked Questions

Is guardianship the same as custody?

No. Custody (now called "care" in the Children's Act) means day-to-day physical care. Guardianship relates to significant decisions about the child's life.

Does an unmarried father have guardianship?

Under s21 of the Children's Act, an unmarried father acquires equal guardianship if he was in a permanent life partnership with the mother at the time of birth, or consented to paternity, or contributes to maintenance.

Can guardianship be removed?

Yes by court order — if the guardian acts against the child's best interests. The court always considers the child's best interests as paramount.

Related Terms

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