Child Custody and Contact in a South African Divorce

The Children’s Act 38 of 2005 speaks of “care” and “contact”, and treats the older terms “custody” and “access” as meaning the same thing. Every decision is guided by one test: what is in the best interests of the child. Neither parent automatically “wins” the children.

For most parents, the children are the hardest part of a divorce. This guide explains how care and contact work, how a parenting plan helps, and what the court and the Family Advocate look at.

Care, contact and guardianship: the key terms

In most divorces both parents keep full parental rights and responsibilities. The question is how the child’s time and care are arranged, not which parent “loses” the child.

The best interests of the child

The court is not choosing between parents. Section 7 of the Children’s Act lists the factors it must weigh where relevant. They include the child’s relationship with each parent and any other caregiver, the parents’ attitude towards the child and their parental responsibilities, each caregiver’s capacity to meet the child’s emotional and intellectual needs, the likely effect of any change in the child’s circumstances (including separation from a parent), the child’s age, maturity and stage of development, the need for stability and security, and the practical difficulty and expense of keeping up contact. It is a weighing of the whole picture for your particular child, not a fixed formula.

Common arrangements

• Primary residence with one parent and regular contact with the other, such as alternate weekends and shared school holidays.
• Shared residency, where the child spends substantial time with both parents. This works best when the parents live near each other and communicate well.
• Supervised contact, in limited cases where there is a risk to the child.

The right arrangement depends on your family. Courts do not favour mothers or fathers as such.

The parenting plan

A parenting plan is a written agreement between the parents on how they will exercise their parental responsibilities and rights (sections 33 and 34 of the Children’s Act). It can cover where and with whom the child lives, the child’s maintenance, contact with each parent and with other people, and schooling and religious upbringing. It must be in writing, signed by both parents, and must comply with the best interests of the child standard in section 7.

The Act expects parents to try this route first. If you are struggling to exercise your parental rights together, you must first try to agree a parenting plan, with the help of a family advocate, social worker or psychologist, or through mediation with a social worker or other suitably qualified person, before you ask a court to intervene.

Once agreed, the plan can be registered with a family advocate or made an order of court. In a divorce it is usually made part of the settlement agreement and becomes a court order. A plan that is a court order can only be changed by the court. A plan that is only registered with the Family Advocate can be amended by the Family Advocate on application by both parents.

The Family Advocate

The Office of the Family Advocate is a state office that assists the court in matters involving children. In a divorce with minor children, the court must be satisfied that proper provision has been made for the children’s welfare before it grants the divorce (section 6 of the Divorce Act), and it may call for a Family Advocate’s report, order further investigation, or appoint legal representation for the child. Their involvement is more likely when the parents disagree. Where you agree, the court will still want to be satisfied that the arrangement protects the child.

Recent court decisions

Two recent High Court judgments show how courts treat children’s arrangements in divorces:

• Parents’ agreement is not automatically accepted. In P.V.Z v L.V.Z [2024] ZAGPPHC 1046; [2025] 1 All SA 265 (GP) (10 October 2024), the Pretoria High Court dealt with unopposed divorces in which the parents had agreed on shared residency. The court held there is no presumption that a shared residency agreement is in the child’s best interests simply because the parents agreed to it. It called for oral evidence and the urgent assistance of the Family Advocate instead of accepting affidavits at face value.
• The Children’s Act sets the rules for children, even in a divorce. In S.H v M.L.H [2025] ZAECQBHC 34; 2026 (1) SA 615 (ECGq) (2 September 2025), the Gqeberha High Court held that the Divorce Act decides where a divorce is heard, but the Children’s Act supplies the principles for deciding care and contact. The child in that case lived with the mother in Malaysia, and the court held that it could hear the divorce but could not make care or contact orders for a child ordinarily resident abroad.

These are summaries of two judgments. Every case turns on its facts.

If you cannot agree

If you cannot agree, you have options before trial:

1. Negotiation between the attorneys.
2. Mediation, with a neutral person helping you reach a workable plan.
3. Family Advocate involvement, with a report and recommendations.
4. The court, which decides if the dispute remains.

Court is a last resort. It is slower, costlier and harder on the children. See also how long a divorce takes: How Long Does a Divorce Take in South Africa.

Tips for parents going through a divorce

• Keep the children out of the conflict. Do not use them as messengers or criticise the other parent in front of them.
• Put the children’s routine first. Keep school, sport and bedtime steady.
• Keep a record of contact and communication, factually and calmly.
• Do not withhold contact as leverage, and do not take the children away without proper agreement or a court order.
• Get advice early, especially if you have concerns about safety.

Common questions

Do the children choose who they live with? No, but a child’s views are taken into account according to age and maturity. They are not decisive.

Do mothers automatically get the children? No. The court looks at the child’s best interests, not the parent’s gender.

Can the arrangement change later? Yes. If circumstances change, the parents can agree to a variation, or either can apply to the court.

Can I move to another city or country with the children? It depends on the order and agreement in place and on the other parent’s rights. Take advice before you plan a move.

Talk to a divorce attorney in Gqeberha

If children are involved, tell me early. I will explain what the court will look at, and help you reach an arrangement that works for the children and for you. Read more about our divorce services or contact us.

This page is general information about South African law and is not legal advice. Please consult an attorney about your circumstances.