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I want full custody

Despite the Children’s Act no 38 of 2005 (the Act) being in place for over a decade it seems that the old family law terminology is still being used.

In this article I try to explain the “new” terminology. When the Act was enacted, it envisaged that both parents should be equal custodians of their children and so the concept of parental responsibilities and rights was legislated. Further it was envisaged that parents would retain full parental responsibilities and rights in respect of their children.

The parental responsibilities and rights that a parent or person may have in respect of a child are set out in s18(2) of the Act and include the responsibility and the right;

(a) to care for the child.

(b) to maintain contact with the child.

(c) to act as guardian of the child; and

(d) to contribute to the maintenance of the child.

Simply put the new terms “care and contact” have replaced the old terms “custody and access.”

Care in s18(2)(a), is to care for the child, and is generally what is awarded to the primary care provider (custodian parent). Care is further defined in s1 of the Act. Often one parent will be awarded primary care and they will care for the child on a day-to-day basis. Currently there seems to be movement towards parents having shared primary care where the parents have the child in their care on an equal rotation basis. In these circumstances the parents are awarded joint care and both parents provide care for the child.

Contact in s18(2)(b) is to maintain contact with the child. Again, this is defined in s1 of the Act. The right to contact is given to the non primary care parent and often contact is defined in parenting plans/ court orders.

Guardian in s18(2)(c) is to act as guardian of the child which is awarded to both parents; and is more fully defined in s18(3).

S18(3) states a person who acts as a guardian must (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic, (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of  the child.

A common example which divorced or single parents have to deal is when one parent wants to remove the child from the Republic, even if to go on holiday, they will need the other parents’ consent. This is because in terms of s18(3)(iii), a guardian has to consent to this, and both parents are joint guardians.

Often when clients ask if they can have “full custody”, what they in fact want is to be the child’s sole guardian (s18(2)(c)) and further have all the responsibilities and rights mentioned in s18(2)(a)(care) and (b)(contact). There is no such term as full custody anymore in our family law legislation.

Sole guardianship (s18(2)(c)) will have to be expressly awarded by the court and will only occur in extreme circumstances and if it is in the best interests of the child.

Further to be awarded all the responsibilities and rights in s18(2)(a)(care) and s18(2)(b)(contact) will also only be in extreme circumstances. Contact can be limited and supervised if need be.

I would advise to not fight for sole guardianship unless extreme circumstances warrant it. The Act itself was enacted to promote both parents having responsibilities and rights in respect of their children. The courts will caution taking away a person’s responsibilities and rights in respect of a child.