In the last few decades we have seen rising divorce rates and an increase in children growing up in two separate households, leaving parents bewildered and uncertain.

Care and contact under the Children’s Act

In terms of the amended Children’s Act 38 of 2005 (the Act) the term “custody” has been replaced with the broader concept of “care”, and “access” has been changed to “contact”.

When providing the child with a suitable home that encourages the child’s health and development, the parent exercises his or her right to care for the child. The primary caregiver is the parent with whom the child resides permanently, it is however important to note that the primary caregiver is not afforded with more responsibilities and rights than the other parent.

Contact relates to the parent with whom the child is not residing, and this parent has the right and responsibility to keep contact and build/maintain a personal relationship with the child.

Parental Responsibilities and Rights

Both parents can be holders of Parental Responsibilities and Rights over the same child which is almost equivalent to joint “custody” insofar as decision making rights and the rights of care are concerned, it is called shared residency.

Biological parents, whether married or unmarried, enjoy inherent parental rights and responsibilities in respect of the minor child. These rights may only be removed by a court order.

If however, the parents are not living together, specific rights and responsibilities may be given to one parent by agreement between the parties or by order of court.

In terms of Section 18 of the Act those responsibilities and rights include:

  • the right of care of the child;
  • the right to maintain contact with the child;
  • the right to act as the guardian of the child; and
  • the responsibility to contribute towards the maintenance of the child.

In terms of Section 30 of the Act where more than one person is the holder of the same parental responsibilities and rights over a minor child, the one may act without the consent of the other when exercising such rights and responsibilities except where the Act, any other legislation or court order provides otherwise.

The “voice” of the child must always be considered

Due consideration must be given to any views and wishes expressed by the minor child before such exercising of rights and responsibilities are made by a holder, bearing in mind the child’s age, maturity and stage of development.

When must joint decisions be made?

Joint decision making by co-holders of rights and responsibilities pertains to the following aspects of the minor child:

  1. major decisions about schooling and tertiary education;
  2. major decisions about mental health care and medical care (unless in the case of emergency);
  3. major decisions about religious and spiritual upbringing;
  4. decisions affecting contact between the minor child and the parties;
  5. decisions that are likely to significantly change the minor child’s living conditions (including but not confined to place of living), or to have an adverse effect on the minor child’s wellbeing.

Divorce doesn’t have to remove parenting rights and responsibilities

As seen from the above, no parent needs to abjure or remove themselves from their child’s life once the process of a divorce has been initiated or granted – a mother and a father can have joint decision making rights and responsibilities in respect of their minor child.

Our Family Law attorneys specialise in all matters of law affecting the family – be it divorce, matrimonial or child-related. For any legal assistance in this regard, please contact our experienced team.

For legal advice about Family Law, Divorce and Matrimonial Law

Juan Smuts            

Wesley Scheepers



The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.