Child Custody Problems and Difficulties in South Africa - Advocate Muhammad Abduroaf

Child Custody Problems and Difficulties in South Africa - By Advocate Muhammad Abduroaf - Family Law Expert



“A child’s best interests are of paramount importance in every matter concerning the child.”
[Constitution: Section 28 (2)]


“In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied.”
[Children’s Act 38 of 2005: Section 9]

20. Parental responsibilities and rights of married fathers.—The biological
father of a child has full parental responsibilities and rights in respect of the child—
(a) if he is married to the child’s mother; or
(b) if he was married to the child’s mother at—
(i) the time of the child’s conception;
(ii) the time of the child’s birth; or
(iii) any time between the child’s conception and birth.
(Date of commencement of s. 20: 1 July, 2007.)

21. Parental responsibilities and rights of unmarried fathers.—(1) The
biological father of a child who does not have parental responsibilities and rights in
respect of the child in terms of section 20, acquires full parental responsibilities and rights
in respect of the child—
(a) if at the time of the child’s birth he is living with the mother in a
permanent life-partnership; or
(b) if he, regardless of whether he has lived or is living with the mother—
(i) consents to be identified or successfully applies in terms of section 26
to be identified as the child’s father or pays damages in terms of
customary law;
(ii) contributes or has attempted in good faith to contribute to the child’s
upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards
expenses in connection with the maintenance of the child for a
reasonable period.
(2) This section does not affect the duty of a father to contribute towards the
maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection
(1) and the biological mother of a child with regard to the fulfilment by that father of the
conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to
a family advocate, social worker, social service professional or other suitably qualified
person.
(b) Any party to the mediation may have the outcome of the mediation reviewed
by a court.
(4) This section applies regardless of whether the child was born before or after
the commencement of this Act.
(Date of commencement of s. 21: 1 July, 2007.)


23. Assignment of contact and care to interested person by order of court.—
(1) Any person having an interest in the care, well-being or development of a child may
apply to the High Court, a divorce court in divorce matters or the children’s court for an
order granting to the applicant, on such conditions as the court may deem necessary—
(a) contact with the child; or
(b) care of the child.
(2) When considering an application contemplated in subsection (1), the court
must take into account—
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other
relevant person and the child;
(c) the degree of commitment that the applicant has shown towards the child;
(d) the extent to which the applicant has contributed towards expenses in
connection with the birth and maintenance of the child; and
(e) any other fact that should, in the opinion of the court, be taken into
account.
(3) If in the course of the court proceedings it is brought to the attention of the
court that an application for the adoption of the child has been made by another applicant,
the court—
(a) must request a family advocate, social worker or psychologist to furnish it
with a report and recommendations as to what is in the best interests of the
child; and
(b) may suspend the first-mentioned application on any conditions it may
determine.
(4) The granting of care or contact to a person in terms of this section does not
affect the parental responsibilities and rights that any other person may have in respect of
the same child.

24. Assignment of guardianship by order of court.—(1) Any person having an
interest in the care, well-being and development of a child may apply to the High Court
for an order granting guardianship of the child to the applicant.
(2) When considering an application contemplated in subsection (1), the court
must take into account—
(a) the best interests of the child;
(b) the relationship between the applicant and the child, and any other
relevant person and the child; and
(c) any other fact that should, in the opinion of the court, be taken into
account.
(3) In the event of a person applying for guardianship of a child that already has a
guardian, the applicant must submit reasons as to why the child’s existing guardian is not