Authored By: Nsindiso Makhaye
Stadio Higher Education
In South Africa, child custody law has undergone significant changes with the introduction of the Children’s Act 38 of 2005. This Act shifted the focus from parental authority to prioritize the child’s rights and well-being. The terms “custody” and “access” have been replaced with “care” and “contact”, reflecting a more child-centered approach[1]
The best interests of the child principle, enshrined in section 28(2) of the Constitution[2] and section 7 of the Children’s Act, guides all decisions. Courts consider factors like the child’s emotional ties, stability, each parent’s fitness, and the child’s wishes depending on age and maturity[3].
This article prioritizes the child’s needs over parental rights, ensuring their well-being is the top priority. In child custody cases, courts consider key factors outlined in the McCall v McCall [4]case, including the child’s emotional bonds, need for stability, each parent’s ability to care for them, and the child’s own preferences considering their age and maturity[5].
The attainment of child custody of mothers’ vs fathers
The law around child custody has shifted significantly. Historically, mothers were often assumed to be the best caregivers, with fathers getting custody only if the mother was not capable. Now, the focus is on what is best for the child, considering their unique circumstances. As a result, it is becoming more common for fathers to be awarded primary care, especially when there is no social welfare concerns. The child’s voice is also given significant weight, considering their age and maturity level[6].
If parents are married, they share equal parental rights and responsibilities, making joint decisions about their child’s life. For unmarried parents, the father’s rights depend on his involvement. If he has been actively involved and contributing financially since birth, he gains full parental rights. Each parent makes decisions when the child is with them, but for major decisions like guardianship, the father with parental rights needs to consent. If they disagree, they can create a parenting plan or approach the court if needed[7].
Before July 2007, the Natural Fathers of Children born out of Wedlock Act[8] governed unmarried fathers’ rights, but this Act was repealed by the Children’s Act[9]. Previously, unmarried fathers could not automatically get parental rights under the old Act. Contact and maintenance are treated as separate issues by law. Courts cannot deny a parent’s contact because they are not paying support, and paying more maintenance does not automatically mean more contact[10].
Legal representation for minors in South Africa vs Australia
In South Africa, children have the right to legal representation at state expense in family disputes, as per Section 10 of the Children’s Act and Section 28(2)(h) of the Constitution. In South Africa a curator ad litem legally assists children in litigation as means to prevent injustices. For example, the court can appoint a curator ad litem to help people enforce their rights when there is no other suitable way to do so. Similar to Australian law whereby, a minor or someone acting on their behalf can approach the Family Court or Children’s Court for legal representation, especially when their rights or interests are at stake. The court looks for a fit and proper lawyer with experience in children’s rights or family law to represent the minor[11].
When appointing a representative, the court prioritizes the child’s best interests, considering their age, maturity, and case complexity. The lawyer’s job is to act in the child’s best interests, make sure their voice is heard, and protect their rights. If the child or their family cannot afford a lawyer, Legal Aid Australia might cover the costs, or they can make private arrangements. In family law matters, the court may appoint an Independent Children’s Lawyer (ICL) to provide an independent opinion on what’s best for the child[12].
In South Africa, a minor or someone acting on their behalf can approach the Children’s Court or High Court for legal representation, especially when their rights or interests are at stake. This means if a child needs help with a family dispute or other legal matter, they can get a lawyer to represent them. The court looks for a fit and proper person (curator ad litem), usually a lawyer with experience in children’s rights or family law, to represent the minor. When choosing this representative, the court prioritizes the child’s best interests, taking into account their age, maturity, and how complex the case is.
The appointed lawyer’s job is to act in the child’s best interests, make sure their voice is heard, and protect their rights. If the child or their family cannot afford a lawyer, the state through Legal Aid South Africa might cover the costs, or they can make private arrangements[13].
Practical challenges
South African law has strong protections for children in custody disputes, but in reality, these protections often fall short due to issues such as false allegations, parental alienation, under-resourced Family Advocates, and slow court processes, making it tough to prioritize the child’s best interests. The study of Thukuse and Masumbe (2025) suggests that family courts need clearer rules for balancing parents’ rights with what is best for children. This would create a framework that protects children’s rights and helps parents act responsibly.
South Africa’s legal system combines customary law and common law, unified through legislation and case law. Historically, common law dominated, and customary law was often seen as inferior, especially regarding parental rights. The repugnancy clause was used to dismiss certain indigenous values as unjust[14].
Now, the Constitution recognizes customary law, requiring courts to apply it when relevant, on the condition that, it aligns with the Constitution and specific legislation. The Bill of Rights also acknowledges rights from common law, customary law, or legislation if they are consistent with the Bill. However, applying both systems together is challenging. The judiciary struggles to determine when customary law applies and often relies on its own discretion. Ascertaining customary law requires investigating both “official” and “living” versions, which is complex. This complexity affects how parental responsibilities and rights are handled, impacting traditional African family values[15].
Conclusion
The Children’s Act 38 of 2005 updates principles for caring for and protecting children, but the study of Bekker (2008) focuses on how it affects African cultural practices and customary law. This article supports his argument that implementing the Act requires considering customary law and cultural issues[16]. In my opinion customary law is vital when approaching the Children’s Act, in practice, the African customary law that is unwritten called Isondlo usually practiced by the Zulu tribe in South Africa. Whereby a guardian of the child is entitled to claim a reasonable amount of maintenance starting from the commencement of the guardianship. This claim applies to parents reappearing to children’s life with the intent to win child custody. Such norms must be considered when approaching Children’s Act and codified to the Republic of the South African Constitution.
Bibliography
Secondary Sources
- Beniface, A. Revolutionary changes to the parent-child relationship in South Africa, with specific reference to guardianship, care and contact. 7 September 2007.
https://www.semanticscholar.org/paper/Revolutionary-changes-to-the-parent-child-in-South-Boniface/bdfbff12880fb424298b6845e62ee9d32feaa613#citing-papers [ Accessed 30/03/2026]
- Barrie, G. The best interests of the child : lessons from the first decade of the new millennium. 2011.
https://www.semanticscholar.org/paper/The-best-interests-of-the-child-%3A-lessons-from-the-Barrie/a0704822d5c54a0d821a9f6b6fb1e2c0f87c2ca6 [ Accessed 30/03/2026]
- Abduroaf, M. 10 questions parents usually ask Our Lawyer when it comes to custody and care issues regarding their minor children. 2026
https://www.ourlawyer.co.za/questions-parents-custody-care-minor-children/ [Accessed 30/ 03/ 2026]
- Sushila, D; Ngwenya, M. Parental rights and responsibilities : family law. 1 July 2015.
https://www.semanticscholar.org/paper/Parental-rights-and-responsibilities-%3A-family-law-Dhever-Ngwenya/9aa073f48447b89bce0ff6dbc18a50eee971df34 [ Accessed 30/ March 2026]
- M. The right to legal representation at state expense for children in care and contact disputes. 2010.
https://www.semanticscholar.org/paper/The-right-to-legal-representation-at-state-expense-Carnelley/e101d17e65846c4cd33f40f2ae7492ef52c003ba [Accessed 29/03/2026]
- Thukuse, B & Masumbe.P. Balancing Constitutional Protections and Parental Rights: Safeguarding Children’s Best Interests in Custody Disputes. E-Journal of Humanities Art and Social Science. 2025.
- Nkosi,G . A PERSPECTIVE ON THE DICHOTOMY OF ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY FATHERS IN TERMS OF THE CHILDREN’S ACT AND CUSTOMARY LAW. Vol. 39, no. 1. 2018
DOI : https://doing.org/10.17159/obiter.v39i1.11402
- Bekkee,J. Commentary on the impact of the children ‘s Act on selected aspects of the custody and care of African children in South Africa. 2008
https://www.semanticscholar.org/paper/Commentary-on-the-impact-of-the-Children’s-Act-on-Bekker/89d14f10276fa1ad65ffdcd80ae71b737f3105a0 [ Accessed 30/03/2026]
Primary Sources
- Republic of the South African Constitution Act 108 of 1997
- Children’s Act 38 of 2005
- National Fathers of children born out of wedlock Act 86 of 1997
Case Law
McCall v McCall (1994 3 SA 201 © 204J-205G)
Boniface, A. (2007) at: Revolutionary changes to the parent-child relationship in South Africa, with specific reference to guardianship, care and contact | Semantic Scholar
[2] Act 108 of 1996.
[3] Act 38 2005
[4] McCall v McCall (1994 3 SA 201 (C) 204J-205G)
[5] Barrie,G. (2011) at The best interests of the child : lessons from the first decade of the new millennium : aantekeninge | Semantic Scholar.
[6] Abduroaf, M. (2026). 10 questions parents usually ask Our Lawyer when it comes to custody and care issues regarding their minor children
[7] Abduroaf, M. (2026). 10 questions parents usually ask Our Lawyer when it comes to custody and care issues regarding their minor children.
[8] Act 86 of 1997
[9] Act 38 of 2005
[10] Sushila, D; Ngwenys, M. (2015) at Parental rights and responsibilities : family law | Semantic Scholar.
[11] Carnelley, M. (2010). Avaliable at The right to legal representation at state expense for children in care and contact disputes – a discussion of the South African legal position with lessons from Australia | Semantic Scholar
[12] Carnelley, M. (2010). Avaliable at The right to legal representation at state expense for children in care and contact disputes – a discussion of the South African legal position with lessons from Australia | Semantic Scholar
[13] Carnelley, M. (2010). Available at: The right to legal representation at state expense for children in care and contact disputes – a discussion of the South African legal position with lessons from Australia | Semantic Scholar
[14] Thukuse, B & Masumbe, P. (2025). E-Journal of Humanities, Arts and Social Sciences. available at:Balancing Constitutional Protections and Parental Rights: Safeguarding Children’s Best Interests in Custody Disputes | Semantic Scholar
[15] Nkosi, G. 2018. Obiter. A PERSPECTIVE ON THE DICHOTOMY OF ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY FATHERS IN TERMS OF THE CHILDREN’S ACT AND CUSTOMARY LAW.
[16] Bekker, J. (2008). Aval at: Commentary on the impact of the Children’s Act on selected aspects of the custody and care of African children in South Africa | Semantic Scholar
