Last updated on Jun 10th, 2021 at 05:21 pm

Nothing causes more conflict and heartache in a divorce case than the issue of child custody and access, now called child care and contact…

Financial arrangements may cause arguments, but care and contact (formerly called access) are the emotional heavyweights in any divorce settlement. We look at the issues involved, and explain how the Children’s Act 2005 attempts to minimise disputes and put the best interests of the child first.

What is the Children’s Act?

The Children’s Act is a radical piece of legislation. It shifted the focus from the rights and power of the parent, as embodied in the word “custody”, and brought children’s rights to the fore (denoted by the word “care”).

The Children’s Act 2005 brought South Africa’s child care and protection law into line with the Bill of Rights and international law. It is founded on the principle that every child has: the right to family care; the right to be protected from abuse, neglect, maltreatment and degradation; and, the right to social services. These rights are also found in Section 28 of the South African Bill of Rights.

Divorce shouldn’t leave children broken. The Children’s Act puts the best interests of the child first and replaces custody with care

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Are child custody battles a thing of the past?

Most couples bringing a child into the world hope to raise the child in a harmonious family unit, whether married or not. If the relationship subsequently breaks down, one of the hardest things to come to terms with is not seeing one’s child every day.

Historically, child custody was usually granted to the mother, with the father having access or visitation rights. The system was based on the traditional view of the mother as the primary caregiver, and the language reflected the power that was so often at the heart of family conflicts.

One intention (among many) of the Children’s Act was to put an end to custody battles that could do more harm to a child than the divorce itself

By putting the interests of the child first, parents have to put their own egos aside and focus on their mutual responsibility to care for the child.

The Act also recognises the importance of fathers in a child’s upbringing

There is far more emphasis on shared care and an agreed approach to parenting than the historical convention of maternal custody and paternal visitation conceded. But it is inevitable that someone will feel short-changed. It is very hard to satisfy everyone’s wishes when dealing with compromise.

Remember – the most important individual in the negotiating process is the one who may not even be at the negotiating table – the child.

What happens on divorce?

The divorce attorney will encourage the divorcing couple to agree all aspects of the child’s care. This includes where the child will live, how parental contact will be divided, maintenance arrangements, and other important factors in a child’s upbringing such as social, cultural and religious involvement.

If they cannot agree, they will be encouraged to draw up a parenting plan, which describes the child care and contact provision. The Children’s Act does not automatically require a parenting plan, but has introduced the mechanism to encourage co-parenting and co-operation between parents.

Section 33(2) of the Act does require parents to agree on a parenting plan before seeking the intervention of the court if they are unable to agree on the discharge of their responsibilities and rights. They can seek help from a family advocate, social worker or psychologist in drawing up the plan.

A parenting plan outlines child care and contact

The parenting plan usually includes, though is not limited to:

  • Where the child will live (sometimes the child’s time is equally divided between the parents; sometimes there is a “primary residence”)
  • Maintenance arrangements (financial support) for the child
  • Contact between the child and the parents (this may include other family members such as grandparents)
  • The schooling and religious upbringing of the child

Children deemed old enough and in possession of sufficient maturity will be given an opportunity to express their wishes, and their views will be taken into consideration. But the principle of the best interests of the child is paramount. Children may know what they want but they don’t always know what’s best.

The parenting plan must be registered with the Family Advocate

Where both parents are involved in a child’s care, they are considered to be co-holders of parental rights and responsibilities, or co-parents. As such, each co-holder may act without the consent of the other co-holder when exercising those responsibilities and rights, except where the Act does not permit it (such as relocating overseas with the child).

Divorcing and taking the kids? What you need to know

Married or not

The Children’s Act introduced a significant departure from previous legislation in terms of the rights of unmarried fathers. Section 21 of the Act states that the biological father acquires full parental responsibilities and rights in respect of the child, even if he does not have them by virtue of marriage to the child’s mother.

To acquire those rights, he must meet the following conditions:

  • At the time of the child’s birth he was living with the mother in a permanent life partnership
  • Whether or not he has lived with the child’s mother, he:
  • Consents to being identified or successfully applies to be identified as the child’s father in terms of the Act or pays damages in terms of Customary Law
  • Contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period
  • Contributes or has attempted in good faith to contribute towards the expenses in connection with the maintenance of the child for a reasonable period

What is guardianship?

The biological parents of a child are considered to be “natural guardians”. Sometimes it is necessary for the Court to appoint “legal guardians”. This may be because both parents have died or one has died and the other cannot be found. Or there may be circumstances that render them unfit to provide care to their child, either temporarily or permanently.

Only the High Court can appoint a guardian, as it is the “supreme guardian” of all children in South Africa. Parents can also name a guardian in a will, to care for their child in the event of their death. The guardian must be a “fit and proper person” and must agree to the guardianship. If not, the Court will appoint a guardian.

Natural guardians are legally duty-bound to support their children and must use their money to do so.

Legal guardians do not carry the same duty. But they are expected to:

  • Administer and safeguard the child’s property interests
  • Assist in representing the child in administrative, contractual and other legal matters
  • Give or refuse any consent required by law in respect of the child
  • Choose an empathetic attorney

How to get a divorce when you don’t know where your spouse is

Divorce is a painful process, especially where there are children involved

Where the financial stakes are high, the choice of divorce attorney is often determined by a track record in litigation and in achieving high-value settlements, often at the end of a hostile and combative process.

But where there are young children to consider, it is far more important to reach a settlement that treats all parties with dignity and respect. The Children’s Act ensures the interests of the child come first, but it is also critical to avoid a showdown between the parents, which can have a lasting impact on the mental health of the child.

This article was first published on //

About the author:

Simon David Dippenaar BBusSc LLB PDLP (UCT), Founder & Managing Partner, Simon Dippenaar & Associates.

Cape Town attorney Simon Dippenaar & Associates, Inc. is an expert in family law and has a reputation for “empathy and professionalism, with a personal touch”, to quote one satisfied client. If you’re going through a marital break-up, we will support you and your children through the process and help you reach the best possible outcome for everyone. Call Simon on 086 099 5146 or email

Further reading:

Staying friends after divorce

Parenting Co-ordination

Child custody and guardianship

Divorce therapy for children 

Collaborating with the enemy

Child maintenance – marriage is irrelevant

Co-parenting with a narcissist