Custody is now called child care – but it is still determined by the courts

The Children’s Act 2005 changed the language we use when it comes to child care arrangements after a divorce or breakdown in the parental relationship. Because the Act aimed to place the interests of the child at the heart of all policy, it did away with “custody” and “access”, replacing these terms with “care” and “contact”.

These are the terms we will use, but we know that many people still think in terms of child custody, and want to know how they can “win” the battle for custody of their child.

A child is not something to be fought over

The concept of winning or losing suggests that a child is an object to be won – an outcome of a battle rather than a vulnerable human being who needs and deserves love and nurturing.

We strongly advise our clients not to think of care of their child as something to be won, but rather as something to be ensured. When child custody is approached from the perspective of the interests of the child, the process is much more likely to be collaborative rather than adversarial.

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That said, the ideal scenario of two divorced parents calmly negotiating co-parenting and making a smooth transition into a two-home happy family is rare. Most divorcing couples experience some degree of conflict when arranging the care of their children.

In this article we will look at the behaviours that will help you increase your chances of arriving at a care agreement (more formally known as a parenting plan) that is in the best interests of your child and maximises the time you spend together.

Child care and contact: shared parenting

The concept of custody was traditionally based on the custom of a primary residence and an alternative residence.

For example, if the child lived with the mother the majority of the time, that was the primary residence, and weekends spent at the father’s home constituted the secondary residence.

Today, it is becoming increasingly common for parents to genuinely share the care, with the child having a base in both homes. A number of factors need to be present for this to work; e.g. the parents need to live near each other and near the child’s school. Or one parent has to be willing to put in the extra effort involved in getting the child to school and after-school activities when the school is a bit farther away.

Where shared parenting is not in effect, and you would like your child to reside primarily with you, what steps do you need to take to convince the courts that this is in the child’s best interests?

We have assumed that you and your ex are already living apart, and the child or children are not living with you. If you are in the early stages of divorce and you are both still in the family home, some of these tips may not apply, but the principles do.

Work together with your ex

If the divorce is acrimonious and you can’t agree on anything, this may be difficult. But it’s important for the court to see that you are willing – and able – to put your differences aside for the sake of the children.

You may not manage co-parenting, and you may need the help of a mediator, but your ability to behave in a calm, adult manner and be civil to your ex will make a significant impression on the court and help convince a magistrate that you are a competent parent. (Read more here about when mediation is disqualified.)

Spend time with your kids!

This may sound obvious, but if you have created a carefree single life for yourself and don’t maintain regular contact, including routine parenting tasks like attending parent/teacher sessions, the court will find it harder to believe that you are committed to full-time parenting. If you have been granted contact time, stick to the arrangements and be on time, every time. Don’t treat time with your children like an optional extra.

Ask for a home evaluation, if this has not been done

You want to prove that you have suitable accommodation for your child (their own room) and an appropriate environment (i.e. no lodgers who might not be good for your child or dangerous physical structures).

Speak well of your ex around the kids

This is sound advice regardless of your custody battle. Your children are not divorcing your ex and they love both parents. Speaking negatively about the other parent will only confuse a child and could lead to parental alienation.

Not only is it abusive behaviour to alienate a child from the other parent, it could also cause the child to become defensive and turn against you for denigrating their mother/father. If your children are consulted by the court in the care decision, they should not have any unpleasant tales to tell about your treatment of your ex.

Stay sober!

It’s no crime to have a drink from time to time. And occasionally you might over-indulge. Provided you don’t have an alcohol or substance abuse problem, this shouldn’t affect your case. However, it is vital that you never look after your children in an intoxicated state. The court must have confidence in your ability to be a responsible parent at all times.

International child custody: Taking children overseas post-divorce

If you suspect abuse…

These tips assume you and your ex are both decent parents who put the child first, and you have legitimate reasons for wanting your child to reside with you… or simply to spend more time with you. All of these behaviours will also assist you in being awarded more contact time even if primary care is not your aim.

However, what if your motivation for wanting care of your child is more pressing… you suspect abuse or otherwise believe that your ex-spouse cannot provide a suitable home environment for your child, perhaps due to mental health issues or substance abuse? What additional steps can you take to convince the courts?

Gather evidence

Document everything. For example, in the case of substance abuse, if you collect your child from your ex’s residence and you suspect they are under the influence of alcohol or drugs, note the date and time and circumstances (smell of alcohol, etc.).

Take photos

If your child has bruises or marks that are suspicious, take a picture and note the date and time. There may be an innocent explanation, but if there is abuse involved you will need visual evidence to back up your suspicions. Take photos of the state of your child when you collect them if you are concerned that your child is being neglected, either due to substance abuse or incompetent parenting.

Get supporting statements

If other family members or friends have witnessed any of the behaviours you are using in your case for care of your child, get them to make a written statement. This applies in the case of substance abuse, physical abuse, neglect or any other inappropriate conduct.

Keep a record of any police interventions or arrests, or employment termination

If your ex’s actions bring them into contact with the law or otherwise have a negative impact on their suitability as a parent, such as loss of income, be sure to keep documentation of each incident.

If you suspect parental alienation, this is a very serious matter that must be addressed promptly.The longer it goes on, the harder it will be to win back your child’s trust and affection. Speak to your family law attorney and raise your concerns. Seek counselling for the child. (Read more here.)

Always seek the advice of an excellent divorce lawyer for child care and contact

At Cape Town family lawyers, we know how important it is for children to have a stable parenting environment post-divorce. Their physical surroundings are far less important than emotional stability and a loving, nurturing environment. If your abode is humble and your ex-partner lives in more glamorous circumstances, this is irrelevant to the best interests of the child, as long as you cherish them and give them a caring upbringing – and, most importantly, keep them safe.

We will help you bring your case before the courts, and support you through the process. We have a track record of helping deserving parents win care or increased contact time with their children.

Contact Simon on 086 099 5146 or email to discuss your case in confidence.

About the author:

Simon David Dippenaar BBusSc LLB PDLP (UCT), Founder & Managing Partner
086 099 5146 / +27 (0) 76 116 0623
F: +27 (0) 86 269 6891

Further reading: