Care and Contact in South African Family Law

Since the enactment of the Children’s Act in 2005, the term “custody” has been replaced in favour of the broader concept of “care”; similarly, the term “access” has been changed to that of “contact”. Despite this change having significant consequences, it is often overlooked or left undiscussed.

A major distinction which can be drawn in this regard is that in terms of common law, custody referred to a person’s capacity to control and supervise the child’s daily life, where as the definition of “care” in the new Act is extended beyond mere custody to include, among others, the right to and responsibility for caring, supporting, and guiding the child, as well as assuming responsibility for the child’s general welfare.

Types of Care and Contact

Sole Care & Contact

Sole care generally refers to having the appropriate sole “physical “and “legal” rights regarding the child. This means that the parent granted sole care will be exclusively responsible for decisions regarding the child’s welfare, which incudes matters of education, medical care and the emotional, moral, and religious development of the child.

Our courts are often reluctant to grant sole care awards in favour of one parent since it is generally in the best interests of a child to have both parents present and involved in their growth and upbringing. The best interest of the child are protected not just in terms of the Act, but are also underpinned as of paramount importance in terms of our Constitution.

Sole care is usually only awarded in cases where one parent is abusive towards a child or if one parent is deemed to be substantially unfit to hold such rights. The non-custodial parent is, in some instances, still entitled to access and visitation to the child but invariably such visits and access are supervised.

Joint Care & Contact

Joint care encompasses both the physical care and legal care of a child and provides that a child spends equal time with each parent. For example, the child will live with one parent for one week and with the other parent the following week.

Furthermore, an advantage of joint physical care is that one parent does not assume the role of the absent parent and the child is able to experience the physical presence of one parent just as much as the other.

However, joint physical care may not necessarily be in the best interests of the child, as this implies that the child will have two permanent homes which could lead to stress and disruption in a child’s life. Whilst parents may be able to cope with the stress and disruption it must be stressed that the best interests of the child should always take precedence. 

Legal Care and Contact

Refers to the parents’ right to make legal decisions about the upbringing of the child which may include the language medium the child should adopt, the religion of the child and the schooling of the child. Courts often find that both parents should be granted joint legal care of the child, thereby granting both parents equal rights in so far as making decisions revolving around the child’s general welfare.

Physical and legal care are two important aspects of raising children when parents are divorced. It is important that both parents involved understand what these terms are and how they, as parents, are bound by their care agreement to their children.

The parent who the court determines should have physical care will be the parent that provides care for the child on a daily basis. Physical care is usually awarded to one parent, because it is in keeping with the importance of ensuring that the child maintains a routine with minimum disruption. Usually both mother and father hold joint legal care, whilst most often the mother is awarded primary physical care.

The common law principle pertaining to contact or access in the Children’s Act embodies the right of a parent/person holding Parental Responsibilities and Rights to maintain a personal relationship with the child; the right to enjoy the company of the child; and the right to communicate with the child on a regular basis.

If you have concerns regarding parental rights in your life, kindly inquire at our offices so that we may assist you.

Prepared by Elke Kiehm