Both parents retain parental responsibilities and rights after separation. Custody is determined in the best interests of the child — not as a reward or punishment for either parent.
FreeSouth African Law2 related guides
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.
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“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.”
What to Do
Step-by-Step Guide
1Try to agree on a parenting plan in writing. This is always the quickest and least damaging route for the child. Legal Aid, family mediators, or social workers can help facilitate this.
2If you cannot agree, apply to the Children's Court (Magistrate's Court) or the High Court for a formal order on care and contact.
3The court may appoint a Family Advocate to investigate and report on what is in the child's best interests.
4Primary care means the child lives with that parent. Contact means the other parent's scheduled time with the child. Both parents retain guardianship unless specifically restricted by the court.
5If a parent refuses court-ordered contact, the other parent can apply for enforcement and the court can hold the refusing parent in contempt.
What to Say
Exact Words to Use
“"I am applying for a parenting plan in terms of Section 33 of the Children's Act and, if necessary, for a court order on care and contact in terms of Sections 23 and 24. The determination must be made solely in the best interests of the child."”
Tone: At the Children's Court or in correspondence with your co-parent
Now practise saying it. The Advocate has a scenario that walks you through exactly this situation — phrase by phrase, with audio playback and a practice drill. Free to try.
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.
Get Help Now
Resources & Helplines
Family Advocate's Office
Via the Department of Justice
Free mediation and investigation for custody matters.
Legal Aid SA
0800 110 110
Free legal representation in Children's Court matters.
Knowing the law is step one. The Advocate has scenarios on Family and Relationships — practise the exact words to use, with audio, law references, and Scripture. Free to start.