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The introduction of a new Children’s Act in 2005, which pertain to children whose parents are going through a divorce, ensure the best interests of the child. 


The Act pertains to;

  • The age of majority
  • Custody
  • Child support
  • Child protection
  • Children’s court
  • Guardianship
  • Paternity

In child custody cases, the child’s best interests are of utmost importance. 


There are two types of custody:

  • Custody before divorce
  • Custody enforcement


Section 1(1) of the Children’s Act 38 of 2005 (CA) defines “care” in relation to a child, as including, but not exhaustively, to the following elements:

  • Within available means, to provide a child with a suitable place to live;
  • Living conditions that are conducive to the child’s health, wellbeing and development; and
  • The necessary financial support;
  • Safeguarding and promoting the wellbeing of the child;
  • Protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazard;
  • Respecting, protecting, promoting and securing the fulfilment of and guard against any infringement of the child’s rights;
  • Guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing;
  • Guiding, advising and assisting the child in decisions to be taken in a manner appropriate to the child’s age, maturity and development;
  • Guiding the behavior of the child in an humane manner;
  • Maintaining a sound relationship with the child;
  • Accommodating the special needs of the child; and
  • Generally ensuring that the best interests of the child is a paramount concern in all matters affecting the child.

Section 2 of the Children’s Act confirms that the terms “custody” and “access” and other law must be construed to mean “care” and “contact”

Thus the concept of care has moved away from the idea of parental power and residence to a rights focused interpretation.

Primary residence is now an element of care but no longer the principal focus any longer.

In P v P [2020] 2 All SA 587 (WCC), the Court discussed the application for primary care as envisaged in section 23(1) of the CA. It stated that the matters the Court must consider include:

  • The best interests of the child;
  • The relationship between the applicant or respondent and the child, and between any other relevant person and the child;
  • The degree of commitment the applicant or respondent has shown towards the child;
  • The extent to which the applicant or respondent has contributed towards expenses in connection with the birth and maintenance of the child; and
  • Any other factor that should in the Court’s opinion be taken into account.

Parenting plan.

Child relocation laws.

Want to see your child?

Children’s  Rights.


Section 44 of the Children’s Act 38 of 2005 (CA) sets out the geographical jurisdiction of the Children’s Courts. It states that the Children’s Court will have jurisdiction in:

  • The court in the area where the child is ordinarily resident; or
  • In the case where there is more than one child in the matter, it will be the court in the area where any of those children is ordinarily resident.

Ordinarily resident is where a person or their family eats and sleeps with a sense of permanency in staying at that place.

If there is uncertainty relating to whether a Children’s Court has jurisdiction, the court that the child is brought before will have jurisdiction.

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The matters over which a Children’s Court can preside involve the following:

  • Safety of a child;
  • Care of or contact with a child;
  • Paternity of a child;
  • Support of a child;
  • Childhood development, prevention and intervention;
  • Neglect, abuse and exploitation of a child;
  • Temporary safe custody;
  • Alternative care;
  • Adoption; and
  • Child and youth care centers, shelters, drop in centers and partial care facilities.

A Children’s Court may convict a person for not adhering to an order of this court.

Who gets custody?

Unfit parenting.

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