One of the most critical aspects of divorce proceedings in South Africa involves answering the questions: "Who will get custody of the children?" and "How will visitation be arranged?" This article provides an insightful look into how child custody and visitation rights are determined and managed in the South African legal context.

Legal Framework Governing Child Custody in South Africa

Child custody, now referred to as care and contact, in South Africa is governed by the Children's Act, which emphasizes the best interests of the child as the paramount consideration. The Act provides for various forms of care and contact arrangements, including sole custody, joint custody and shared custody.

Types of Care and Contact Arrangements

1. Sole Custody: One parent is given primary responsibility for the child. This is usually awarded when the other parent is deemed unfit or it is in the child’s best interest.

2. Joint Custody: Both parents share decision-making responsibilities regarding the child's welfare, even if the child primarily resides with one parent.

3. Shared Custody: The child spends significant amounts of time with both parents. This arrangement requires a high degree of cooperation between the parents.

Determining Care and Contact

The primary consideration in determining care and contact is the child’s best interest. Factors considered include:

• Parent-Child Relationship: The emotional bond between the child and each parent.

• Parental Capacity: Each parent's ability to provide for the child's emotional, educational and physical needs.

• Child’s Wishes: Depending on the child's age and maturity, their preferences may be considered.

Contact or Visitation Rights

Visitation, also known as contact or access, refers to how the non-custodial parent will maintain a relationship with the child. Visitation schedules can vary widely and are often detailed in a parenting plan.

The Role of Family Advocates and Mediation

• Family Advocates: These professionals may be involved to assess the family's circumstances and make recommendations to the court regarding care and contact.

• Mediation: Mediation is encouraged to help parents reach an amicable agreement on care and contact arrangements.

Legal Representation and Parental Rights

It is advisable for parents to seek legal counsel to understand their rights and responsibilities fully and to ensure that the care and contact arrangement is legally binding and enforceable.

Conclusion

Child care and contact rights are sensitive aspects of divorce proceedings in South Africa. Understanding the legal framework and the paramount importance of the child's best interests are key to navigating these issues. With the right support, information and legal guidance, parents can ensure that their children's welfare and needs are prioritized during and after the divorce process.

Barter McKellar’s divorce attorneys have extensive experiencing on advising on all aspects of divorce matters. If you would like to find out more, contact our offices today to schedule a consultation with one of our specialist divorce law lawyers.