Who Gets Custody of Child in Divorce South Africa?

In South Africa, child custody is determined based on the best interests of the child, not the gender of the parent. Since 2006, there is no automatic preference for mothers. The court, applying the Children's Act 38 of 2005, appoints a Family Advocate to investigate custody arrangements and make a recommendation. The final decision rests with the judge, who considers factors like the child's relationship with each parent, stability, and the child's own preference (if old enough).

The Best Interests of the Child Standard

Section 7 of the Children's Act 38 of 2005 establishes that the child's best interests are paramount in all custody decisions. Courts no longer apply gender-based assumptions.

Key Principles:

• Both parents have equal rights to custody unless circumstances suggest otherwise
• Maternal preference is outdated and illegal
• Judges assess each parent's capacity to meet the child's physical, emotional, educational, and safety needs
• The child's own voice is heard (especially if age 10 or older)

What Courts Consider:

1. Relationship Quality

   • Strength of bond with each parent
   • Who has been the primary caregiver historically
   • Pattern of involvement in daily care, schooling, medical appointments

2. Stability

   • Housing stability (where the child will live)
   • School continuity and disruption risks
   • Employment stability of each parent
   • Financial capacity to provide for the child

3. Parental Capability

   • Mental and physical health of each parent
   • Criminal history or substance abuse issues
   • Capacity to meet the child's educational needs
   • Ability to facilitate the child's relationship with the other parent

4. Child's Preferences

   • If the child is age 10 or older, their preference is considered
   • Children 12+ have greater say
   • Very young children's preferences carry less weight

5. History of Care

   • Who fed, clothed, helped with homework, attended medical appointments
   • Primary caregiver status is heavily weighted

6. Safety Concerns

   • History of abuse (domestic violence, child abuse)
   • Substance abuse or criminal convictions
   • Risk of harm to the child

The Role of the Family Advocate

When custody is disputed, the court appoints a Family Advocate to investigate. The Family Advocate is an independent officer appointed under the Children's Act 38 of 2005 to protect the child's interests.

What the Family Advocate Does:

• Investigates both parents' circumstances
• Interviews both parents separately
• Speaks with the child(ren) privately
• Reviews school records, medical files, and living conditions
• Speaks with teachers, doctors, or other relevant persons
• Prepares a detailed report with a recommendation to the court

Timeline: The Family Advocate investigation typically takes 4–8 weeks. The court cannot finalize custody until the report is received.

Typical Questions the Family Advocate Asks

During an investigation, expect these questions:

About Your Relationship with the Child:

• "Describe your typical day with your child. Who wakes them? Who prepares meals?"
• "What is your child's favorite activity, and how often do you do it together?"
• "What is your child's best friend's name, and do you know their parents?"
• "What subjects does your child struggle with, and how do you help?"
• "When was the last time you attended a school event or medical appointment?"
• "What are your child's fears or worries, and how do you comfort them?"

About Your Living Situation:

• "Describe your home. Where will the child sleep?"
• "How far is the home from your child's school?"
• "Can you afford your current living situation?"
• "Are there other adults or children living with you? Describe those relationships."

About Your Parenting Approach:

• "How do you discipline your child? What happens when they misbehave?"
• "Do you encourage your child's relationship with their other parent?"
• "How do you handle your child's emotional needs?"
• "What are your expectations regarding schooling and academic performance?"

About Your Circumstances:

• "What is your employment situation? Will you be able to care for your child?"
• "Do you have any health conditions that affect your parenting?"
• "Have you ever been arrested or convicted of a crime?"
• "Do you use alcohol or drugs? How does it affect your parenting?"

About the Other Parent:

• "How does your child respond to their other parent?"
• "Do you think the other parent should have contact with your child?"
• "Have you witnessed the other parent treating your child badly?"

Directly to the Child (Age 10+):

• "Tell me about your relationship with Mom/Dad."
• "Where would you prefer to live? Why?"
• "What does your Mom/Dad do that you like?"
• "Is there anything that worries you about either parent?"
• "What do you wish was different about your family?"

Types of Custody Arrangements

1. Sole Custody One parent has full parental rights; the other has visitation rights. Used when:

• One parent is unfit or abusive
• One parent has been uninvolved in the child's life
• The child is unsafe with one parent

2. Joint Custody Both parents share parental rights and responsibilities. Used when:

• Both parents are capable and involved
• Cooperation between parents is possible
• The child benefits from meaningful contact with both

Joint Custody Does Not Mean 50/50 Time The child may reside primarily with one parent while both have parental rights (e.g., 70/30 residence split but joint custody).

3. Shared Parenting Both parents share physical custody, with the child spending substantial time with each. Used when:

• Both parents are stable and capable
• Geographic proximity allows for frequent transitions
• The child can handle multiple homes
• Both parents prioritize the child's stability

Visitation Rights and Contact

Even if one parent has sole custody, the other typically has the right to visitation unless there is abuse or safety risk.

Typical Visitation Schedules:

• Alternating weekends: Friday afternoon to Sunday evening
• Weekday overnight: One or two weeknights
• School holidays: 50/50 or extended periods
• Flexibility: Parents may agree to flexible arrangements

Supervised Contact If abuse or safety concerns exist, visitation may be supervised by a neutral third party or social worker.

Restriction of Contact Contact may be restricted or prohibited only if:

• The parent poses a danger to the child
• Court evidence shows substantial abuse risk
• The child expresses fear of the parent

Key Legislation

• Children's Act 38 of 2005, Section 7 — Establishes the best interests of the child standard
• Children's Act 38 of 2005, Sections 18–33 — Governs parental responsibility, guardianship, and custody
• Mediation in Certain Divorce Matters Act 24 of 1987 — Requires mediation attempts in custody disputes
• Divorce Act 70 of 1979 — Governs custody decisions in divorce proceedings

Common Mistakes

• Assuming mothers automatically win custody: This is false. Courts apply the best interests test equally to both parents.
• Limiting the other parent's contact unnecessarily: Courts view this negatively and may penalize the restrictive parent.
• Not documenting parenting involvement: Keep records of school events attended, medical appointments, homework help. This supports your custody claim.
• Criticizing the other parent to the child: Family Advocates and judges view this as harmful to the child and damaging to your case.
• Missing a Family Advocate interview: Failing to appear weakens your custody position.
• Underestimating the child's voice: Children age 10+ are heard, and judges often follow their preference if credible.

For more on this topic, see how to apply for divorce.

For more on this topic, see divorce costs.

For more on this topic, see family law.

When to Consult an Attorney

Consult an attorney immediately if:

• Custody is disputed between parents
• A Family Advocate investigation is underway
• You suspect child abuse or safety risks
• You want to modify an existing custody order
• Your ex is withholding contact with your child
• Child maintenance/support is contested

Related Questions

• How to apply for divorce in South Africa?
• How much does divorce cost in South Africa?
• What is the Maintenance Act in South Africa?
• Can I relocate with my child after divorce?

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Reviewed by a verified Family Law attorney on the Justibly network. Disclaimer: This answer is for informational purposes only and does not constitute legal advice. About the Author: This answer was prepared by the Justibly Legal Research Team, reviewed for accuracy by practising attorneys admitted to the High Court of South Africa. Verify attorney credentials on the LPC register. Last updated: April 2026