Direct Answer
Under the Children's Act, both parents have parental responsibilities and rights regardless of marital status. If you cannot agree on custody and care arrangements, apply to the Children's Court or the High Court. The court's sole consideration is the best interests of the child — not the parents' preferences.
What the Law Says
Your Legal Foundation
Children's Act 38 of 2005
Section 7
“Whenever a provision of this Act requires the best interests of the child to be considered, the following factors must be taken into account: the child's relationship with each parent; the ability of each parent to provide for the child's needs; the child's preference, if old enough.”
Children's Act 38 of 2005
Section 18
“Both parents of a child have full parental responsibilities and rights in respect of the child, including the right to care for the child and the right to act as guardian.”
Constitution of South Africa
Section 28
“Every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment.”
Common Questions
Frequently Asked Questions
Can I take my child out of the country after separation?
Not without the consent of all guardians, or a court order. Taking a child out of South Africa without consent is child abduction under the Children's Act and the Hague Convention. You can apply to the Children's Court or High Court for permission if the other parent unreasonably refuses.
At what age can a child decide which parent they live with?
South African law does not set a specific age, but courts give increasing weight to a child's preference as they mature. A child's voice is heard, but the court is not bound by it — it remains a factor in the best interests assessment, not the sole determinant.
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