Child Custody – Frequently Asked Questions and Answers – Cape Town

Frequently Asked Questions on Child Custody – Cape Town

Advocate Muhammad Abduroaf High Court South Africa
Advocate Muhammad Abduroaf – Advocate of the High Court South Africa

We hold a wealth of knowledge on family legal matters, in relation to South African law. This includes issues and questions surrounding child custody, divorce and child maintenance. Feel free to browse through the question and answers below. Should you not find the answer to a child custody question you are looking for, feel free to post your divorce question here. For more questions on child custody, visit this page.

Can you change the baby’s last name without the father’s consent?

No, you require his consent. If he does not want to give consent, then you may approach a court of law. This answer is based on the presumption that the father has parental responsibilities and rights over the child.

Do I have parental rights if I am not on the birth certificate?

Yes, it is possible that you have.

How do you change your last name on your birth certificate?

You need to apply to the Department of Home Affairs.

How do I apply for child maintenance in South Africa?

You should approach the maintenance court.

Can you change your child’s surname?

Yes, you can. Both parents should consent.

How do I change my child’s surname in South Africa?

You need to apply to the Department of Home Affairs.

How much is the basic rate of child maintenance?

There is no basic rate. It depends on the income and expenses of both parents and the needs of the child.

What are your rights as a father?

To form part of the child’s life.

Can you put your baby up for adoption without the father’s consent?

No, you cannot.

Can a mother keep the child away from the father?

She may only with very good reason.

Can a father take a child away from its mother?

He may only do so for a very good reason and in the child’s best interests.

Can a mother give up her parental rights?

Yes, she can.

What age do you stop paying child maintenance?

18. This is when the child is an adult.

What makes a child legitimate?

If both parents were married when the child was born or after. However, the term legitimate and illegitimate is frowned upon.

How do I get sole legal custody of my child?

You need to apply to the court.

Can you get child support if the father’s name is not on the birth certificate?

Yes, you can.

Can a parent take a child away from the other parent?

Only if it is truly in the child’s best interests.

Can you get child support if you have joint custody?

Yes, you can.

Can a parent take a child out of South Africa without permission of the other parent?

No, a parent cannot.

Can a mother take the child from the father?

No, she may not. If she does, she would have to have a valid reason.

What is considered parental kidnapping?

If a parent takes the child from the primary caregiver without his or her permission.

Can a police officer enforce a child custody order?

They may if ordered to.

What are your rights as a father?

To form part of a child’s life.

Who has custody of a child when the parents are not married?

Both parent if they form part of the child’s life. This is on condition that they both hold parental responsibilities and rights. In short, if they meaningfully partook in the child’s life, they hold parental responsibilities and rights.

Can you change the baby’s last name without the father’s consent?

No, you require both parent’s consent. This is especially so if both parents are holders of parental responsibilities and rights over the child.

Do I have parental rights if I am not on the birth certificate?

Yes, you do. If you meaningfully partook in the child’s life you have those rights. Here we refer to paying child support or proving support. We are also referring to you spending time with the child.

How do you change your last name on your birth certificate?

You apply to Home Affairs. Both parents have to give consent if they are co-holders of parental responsibilities and rights. If they do not give consent, then a court application has to be lodged.

How do I apply for child maintenance in South Africa?

You approach the maintenance court. There is a maintenance court in every magisterial jurisdiction in South Africa. You should approach on where you and the child resides, or where you work.

What is visitation rights?

The right to see your child or have contact with him or her. Visitation rights are usually every second weekend and during school holidays.

What rights does a father have to a child born out of wedlock?

To form part of the child’s life. In other words, the same rights as a father of a child born in wedlock. This is of course on condition that he meaningfully formed part of the child’s life since birth.

How can a father get custody of his child?

He should apply to the court. The court would look into what is in the child’s best interests.

What percentage of mothers get custody?

Mother’s are usually the primary caregivers of young children.

How do you get custody of a child without a lawyer?

You can approach the court yourself.

What is an unfit mother?

A mother who does not act in the child’s best interests.

Can a mother keep the child away from the father?

No, she may not. If the mother does that, the father can enforce his rights by approaching a competent court.

How do you apply for full custody of a child?

You approach the court. You may approach the Children’s Court or the High Court.

What percentage of fathers get custody?

A large amount. Each case has its own merits.

What are your rights as a father?

To form part of a child’s life. He also has responsibilities to care and guide the child.

Can you change your child’s surname?

Yes, you can. However, you require the consent of both parent’s holding parental responsibilities and rights.

How does a judge determine custody of a child?

The judge looks at what is in the best interests of the child. There is no pre-determined preference for the father or mother.

How can you get custody of your child?

You should apply to the court. The court would listen to both parents and decide what is best for the child.

What is full custody of a child?

Full custody means that you fully care for the child.

How much is the basic rate of child maintenance?

There is no basic rate. It depends on the specific circumstances of each case. You look at what the parent’s earn and the needs of the children.

Can a mother take her child away from the father?

She may only do that if it is in the child’s best interests. However, she may not go against a court order. If there is a court order in place, she would have to apply to have it varied.

Can a parent take a child away from the other parent?

No, a parent may not do so. If there is a court order in place, such order must first be changed.

How do I change my child’s surname in South Africa?

You need to apply at the Department of Home Affairs. Both parents should give consent. If consent is unreasonably withheld, a court application must be lodged.

How do you file for full custody of your child in Cape Town, South Africa?

You may approach the High Court of the Children’s Court. Each court has a different procedure.

What is joint custody with primary residence?

Joint custody means both parents have equal say in the child’s life and care for the child in that manner. Primary residence is where the child primarily resides. If the child lives with the father during the week, and only sees the mother on weekends, then his home is the primary residence.

What does it mean to have full custody?

The means that the child’ is cared for by only one parent who has full custody.

What is the difference between full and sole custody?

It means the same thing. However, full custody may also mean join custody. It all depends on the context.

Can you get custody of a child that’s not yours?

Yes, you can. You would need to apply to the court for such rights. You may apply to the High Court or the Children’s Court.

Who has custody of a child when the parents are not married?

By default the mother. However, the father acquires such rights if he forms part of the child’s life.

What rights does a mother have to her child?

A mother has full parental responsibilities and rights over her child.

Can you get sole custody and child support?

Yes, you can. They two are separate matters.

What does it mean to be the primary custodial parent?

It means the child is primarily cared for by that parent.

What is partial child custody?

It means that you do not care for the child all the time.

What is the meaning of joint custody?

Joint custody is where both parents care for the child.

What is the difference between legal and physical custody?

Legal would mean based on a court order or the law. Physical would mean what actually takes place.

 

 

 

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55 thoughts on “Child Custody – Frequently Asked Questions and Answers – Cape Town

  1. The father of my two daughters, aged 9 and 12 wants visitation now after 9 years of absence. He has never financially supported them. The youngest doesn’t remember him and the eldest doesn’t want to see him( as she remembers how he physically abused me). What rights does he have? His parents also want to visit now, after a 9 year absence. Do they have any rights?

    1. If its in the minor children’s best interest for him to have contact now, then that may be enforced. Its one of those difficult questions to deal with. Is it better for a child never to know their parents, even if they want to be involved after 9 years. Maybe see a social worker and see what they say.

    1. If the Parenting Plan is registered or made an order of court, the child must visit the father. If the child has a good reason, you need to approach the court to vary the order.

  2. I come from Europe and have been in a relationship with a southafrican for two years. Now I am pregnant with his child. He refuses leave the country with me as he already has two children. I would like to return with our child regardless if he chooses to come with. How must we register the child in order for me to leave the country even without his consent?

  3. My wife’s ex has never contributed to their daughter’s well being in the 8 years I have been with her. She moved in with us 4 years ago full time. He has recently moved back to England and been banned from returning to South Africa for a period of 5 years. However, she needs to travel for school trips as well as to visit him in England. We have no issue with it but trying to arrange the documents required for visas and travel with him is an absolute nightmare and he is extremely difficult at the best of times. Is it possible for my wife to get sole custody seeing that he is absent.

    1. Good day
      It seem what your wife requires is Sole Guardianship, where she does not require his consent for the minor child’s passport or for travel.

  4. I am not sure if my marriage has been registered with dept of home affairs as my divorce to Husband 1 took 31/2 yrs to register. I got married a few months after my 1st divorce. My current husband chased me away with my 2kids from my previous marriage as well as our 2yr old baby. I work with him , problem is , he works full day and then hives extra classes daily till 7pm week nights. I was admitted to a psych ward after baby’s birth and my dad passing away. Drs said said I suffered from extreme PND (post natal depression) and trauma. He threatens to file for sole custody of baby. She doesnt eant anything to do with him. He also drinks alot of alcohol and has abused me. I am in dite straits. What should I do?

    1. The best is to speak to a social worker to advise what is best for your children. On their advice, you may want to approach a Court after consulting with a lawyer who advises you to do so.

  5. Can my husbands ex stop him from picking up his child from school. The divorce order states that he can have the child from 18:00 on fridays – but for two years they have the arrangement that he may fetch the child after school on fridays. Now she wants to change it back to 18:00 and have sent a mail to the school saying he is not allowed to take his child. They have joined custody

  6. hi my daughter of 13yrs living wth me nw fr abwt 5yrs jst afta my daughter was in a car accident me n the mom agreed its best fr the kid to live wth me n im stable awso all went well my mom applied fr gaurdianship n sassa n c gt approved bt nw lst year september i ws summonds to b at family court in union building once i gt dre my ex ws waiting the moment we started my ex gt up n sed c change hr mind n tht she think the kid is better off wth me n that i do a gud job in raising hr.my contact number XXXXXXX cn call me if u cn help me .My question is ds that mean c gave me custody n signed the kid over to me n wud the family cour hve datcon paper whre agreed dat da kid shud stay wth me n if so wt rights do i hve over my daughter.Meaning:as i sed my kid ws in n accident wt right do i hve whre da road accidentvfund muni come in do i hve a say seeiñg dat da kid lives wth me cos i head mom went n claim n dey paid it iñto hr bank açc a sum of 750 000 nw c sqaunders the muni n nt evñ buying hr kid anything wu ws inda accident wt cn i do.an wsnt da muni suppose to gi into a trust

  7. Good Morning

    Last year the court ordered that the father of my child have access to my son at any provided day given that the father returns him the very same day as he was still young.
    Unfortunately I moved overseas this year due to work purposes and thought we’ll never have the deal with “court appearances”. This year I got my son into crèche and when I tried to involve the father he didn’t seem to care and maintains his son when he wants too.

    The father decided to make use of my absence so he can get “full access “ to my son once again by taking my mother, his current caregiver to court.
    Now changes to the court order was that the father takes our 2 and half year old son every Friday at 5pm and return him once again at 5pm on Sundays.(which i disagree with as his still very young for such arrangements)

    He now wants full custody our son and The court said that they (my mother and the father)should return in August to conclude if whether he can have my son to stay with him while I’m away.

    I am currently supporting my child by myself with everything and I have no problem with the father having him on weekends as ordered but him living with him is a different story because of his age.

    What are the chances of the father getting my son to live with him full time? And can the court rule in his father as my mother is not his legal guardian? Would it be best if I returned?

    Please help

    1. The father is in a very good position to apply for full custody as you are abroad. The court would still have to determine what is best for the child.

  8. My ex husband drinks a lot. Him and his fiancè fights a lot and 2 weeks ago it got physical and he gave her a black eye. The both blamed it on alcahol. He said he was going to quit drinking. I very clearly said that if the kids are visiting
    him, he is not allowed to consume any alcahol and he agreed. Not even 2 weeks later and he is already drinking while the visit him. What can I do that wont cost me a fortune?

  9. Hi there,
    My daughter is 19, currently has a part time job but is still living with her mom. The divorce decree states that maintenance should be paid till she is 21 or in employment. I am living in the UK (with 3 minors) and in serious financial difficulty…do I still need to pay maintenance?

    1. The Order still stands as she is not yet 21. If you cannot afford to pay maintenance, you need to approach the Maintenance Court where the child lives and apply for the variation thereof.

  10. Hello can you please give me advice.my eldest 12 years of age is staying with me but when me & his dad appears in court his dad refuses to pay of cause weekends he spends there from Friday to Sunday night,and during week after school he come fetch him brings him at 7 night back.He ask the court to look at the hours kid spend with him,it’s like staying with him.but he doesn’t buy anything i do.is he right?

  11. Hello can you please give me advice.my eldest 12 years of age is staying with me but when me & his dad appears in court his dad refuses to pay of cause weekends he spends there from Friday to Sunday night,and during week after school he come fetch him brings him at 7 night back.He ask the court to look at the hours kid spend with him,it’s like staying with him.but he doesn’t buy anything i do.is he right?the child do wat wash all by my

    1. Good day
      The Could is legally obligated to make a fair maintenance order. So even if the father refuses to pay, the court can force him. You should just make sure you present all information regarding your income and expenses for both you and the child to court.

  12. Hello. I am a 23 year old female married with a son from a previous relationship in which I was not married. We parted ways and I have been the primary caregiver for my son for his whole life of 5 years. He sees his father every 2 weeks and his father pays for his school fees. My husband and I now have another child of our own making us a family of 4. We would like to move 400km out of Cape Town to George as we own a piece of property out there and would like to give our sons a better life and an alternative to the city. The plan is to visit Cape Town regularly and allow our eldest son to see his biological father in the holidays. He is now saying that he will refuse to let us move and we’re not sure if he has the right to do this. His name is not on the birth certificate for reasons known only to himself and for many years refused to give more than R600 a month as maintenance. Even though he is paying R1600 a month now (for schooling only) this still does not equate to half of our son’s monthly needs. We are fully prepared to accept this though as he says that it is all he can afford. Our question is do we have the right to move with our children in this case and also, would he have the right to refuse maintenance then?

    1. Good day

      If there is no order prohibiting you from moving, then you can move with your child.
      If he does not pay maintenance, then you should approach the maintenance court at the time.

  13. I have a friend, umarried single mom of a 3 year old. She is currently umemployed and lives with her parents and not sure about the maintenance agree she has with the childs father. She’s been served with a letter from the child’s grand parents’ attorney, requesting that the child resides with the grandparents, the child currently does not attend creche, but is looked after by the mother, even though the mother is unemployed be it that maintenance is paid or not. What rights do the grandparents have serve the mother with an attorney’s letter? and what are the mother’s right to avoid having her child away from her, what seems to be because she is unemployed?

    1. In all matters regarding children, their best interests are of paramount importance. The mother has all the rights, but the grandparents as interested parties can also approach a court. If they can prove that what they want is best for the child, then the court will grant what they ask for.

  14. How will father pay maintance if he has no job and stays with woman who support s him.And all woman be with he don’t say he got child what can do about that

  15. Hi – my ex and I have joint custody of our 8 year old daughter. He has access to her every 2nd weekend and school holidays. The access agreement is from Friday afternoon to Sunday afternoon. We have been divorced for over 6 years and in that time he has collected her and dropped her off for each visitation – he has now moved approximately 40 kms away from her primary residence with me and he now refuses to pick her up and drop her off on her weekend with him. I feel as I transport her to all her extra cirricular activities that I am not liable for the additional cost of transporting her to him on his weekend with her. Please advise

    1. The Order should be followed. If the order does not make provision for who collects and drops off, then obviously the parent exercising contact must collect and drop off unless you agree otherwise.

  16. i moved out last year march after finding out my ex cheated. i took my then 6 year old son with me, but agreed with the father that he could live with him until i find a stable place to live and finish his last year in grade R at the current school. then when i tried to take my son i had problems with finding a school for him as all grade 1 classes were full. this year i moved in with my sister in Atlantis. his father does not want him to live with me as he feels its not a nice area. i unfortunately cannot afford to live anywhere else, i am in the process of buying a plot and building a 1 bedroom for myself and my son in the meantime. but i know he will refuse my son to live with me because of the area. his very manipulative and always makes me feel bad when i want to take my son. i have decided that i want my son and i am going to fetch him regardless of what he thinks. then start custody the custody process. as i do not want to start it while my son is living there because i was told its a lengthy procedure. i have tried going to social workers to work this out, but its just not working at all. would it be possible just to fetch my son and maybe take an officer of the law with as i am scared to go alone as i know him and his mom will start a fight.

    also if i am told i cannot see my son (even though the agreement was he should be with me every weekend) can i fetch him at the aftercare and notify them afterwards? or is that kidnapping even though there is no court agreement granting his dad full custody?

    my son has a nanny that takes care of him during the week as his father works night shift monday to friday. and weekends his suppose to be with me.

    1. Good day

      One needs to look at what is in the child’s best interests. The father is the current primary caregiver. We would not advise that you take the child as you outlined. We advise you approach the children’s court.

  17. my son has immigrated to new zealand. His 25 year old daughter visits regularly yfrom South Africa. she has just discovered he is not on her inabridged certificate. both her mom and my son went to home affairs togethet when my granddaughter was born yet paperwork is incorrect. jow can he be added. the mother is in agreement they were very young when granddaugter was born. pls advice

  18. Hi, can my fiance fight for full custody if we have evidence of alcohol abuse, the mother is currently in rehab and we have the 3year old child now, we have voice recordings as well as evidence, the mother doesn’t have a job and lives off rent paid to her and my fiance (Father) is unemployed, but i support him. Do we have a better chance if we are married? Is this enough evidence of the mother being unfit?

    1. Good day
      The Court decides what is best for the child. Being married or not could be a factor. But the main factor is can you care for the child where his best interests are looked after. The same with the mother. Being in rehab would be held against her.

  19. Hi
    My boyfriend has visitation with his son every second weekend. He pays his maintenance and has been consistent with payments since leaving the child mother. It is now his weekend and the child mother decided hat she will keep him as it is the child’s birthday and not allow the child to see his father for the weekend. Can she change something that has been legally implemented. Over and above that the child made plans with his dad for his birthday weekend and Christmas but she has also decided that he will spend Christmas with her again regardless of what the 9 year old boy wants. Must my boyfriend go back to court? Can he fetch his son on his agreed weekend or does she have the right to swop it when she feels.

    1. Good day
      You mentioned that it has been legally implemented. We presume there is a court order. If there is no court order, we advise that he approaches the children’s court to resolve the issues going forward. He and the mother needs to act in the child’s best interests. We do not want to advise on how he should deal with this matter as we have not consulted with him and assessed the matter.

      1. There is a court order in place. He gets his son every second weekend. However this weekend is his weekend and the childs birthday but the mother is refusing access, she emailed advising that she will ensure she is not available so he cannot fetch his son. What must he do in this case?

        1. She is in contempt of the Court Order. We strongly discourage going the Police with the court order, even if they may assist. The best would be to approach the court with a contempt of Court application.

  20. In 2013 right before I broke up with my ex he made me do a pregnancy test in front of him and it was negative. I moved on with my life and got pregnant to my now husband. My daughter is 4 years old now. My ex has gone to court and filed a form 4 saying that I’ve abducted the child. What must I do ? He has not done any dna to prove that the child is his. He has never given any form of support to my daughter for him to make such claims? I’m afraid this will confuse my daughter.

  21. Hi. My son’s father has never really been in his life, does so when it suits him. Sometimes doesn’t call for months. He is 11 years old now. I have looked after him from day one, schooling, living, medical etc.

    He has some sort of mental problems (as stated by his own parents, therefore is not in the right mind to look after himself or have a job). He and his family also have no morals or religion, which I think is not in best interest of my child. He has girls sleeping over(not Islamic), teaches my son to whistle and degrade women.

    Does he have any grounds based on his mental issues and basic family life? I fear when my son is in his company because it’s a matter of who is the adult and who is the child.
    My son has had a very good life so far, which I work my butt off to provide. I do not have anything legally on paper but I have always made all medical, education and life decisions for my son (in his best interest of course).

    1. Good day
      It seems that you want to limit the father having contact with the child. We advise that you approach a social worker and see what he or she has to say whether it is in the child’s best interest or not. If it is, then you may consider approaching the Children’s Court to make it an order.

  22. My brother wife got an anger problem. She gets quick angry and then keeps the child hostage whole day in the room behind closed doors. My brother has no say over his child she controls him. She doesn’t let their son also go out with him and their son very attached to him. Friday she ran out with their child without telling my brother she did move to her mother and she’s not letting my brother see his child he wont be able able to see his son over the festive season cause his wife and family is violent and the places are all closed now. Isn’t there a other way where my brother can get his rights to see his child their son is 1 year and 8 months old and love his dad a lot it’s unfair that my nephew is being kept away from his dad.

    1. Good day
      Your brother can approach the High Court through and lawyer (or he can do it himself if he knows court procedure), and make an urgent application to enforce his parental responsibilities and rights. He also has the option of the children’s court, but that may take longer.

  23. Good day I am a mother to a 8 year old girl due to the hours that I work I had to leave my baby to live with my aunt and fetch her on weekends..her father has been around when it suits him we had a verbal agreement on him spending alternative weekends with his child I recently found out that he has taken the child from my aunties residence and illegally took transfer from her school he is uunemployed and lives with his girlfriend he now refuses to give me contact with my child the police says that she cannot be removed from her father ….my question is can take her away from the father and will he get legal custody over her

    1. Good day
      We strongly advise that you approach the children’s court in your area to assist you. It is not in the child’s best interests to be moved around from home to home as in this case. Otherwise, speak to a social worker from the department of social development for assistance.

  24. I left my husband 2 weeks ago due to his alcohol abuse. He went and got legal advise, where I opted to wait until je calmed down. His lawyer phoned me and asked if I would enter into negotiations, to which I agreed. They are now insisting on him having visitation weekends and I am refusing. Our daughter is 5 years old. She will not be able to let me know if there is problems. How will she cope alone with her father if he is drunk? What should I do? I am unemployed at the moment, staying with my parents, who is supporting me and my kids. I cannot afford a lawyer now.

    1. We suggest you approach the children’s court. Otherwise, find out which social workers they make use of and ask them their view on your situation.

  25. My child’s father was not present while I was pregnant, he was not around when my child was born. He did not contribute to any medical bills as well …
    When she was about 3 weeks old he threatened me saying “ his going to the police station and his going to tell an officer that I’m abusing my daughter and because she’s so young they will believe me” this was because I refused to let him take her for a weekend(she’s not on formula) he provides nappies and her toiletries.. but recently he stopped. His allowed to visit every weekend but due to our busy schedule I had to cancel a few times. And this was not to spite him.. can he take her away from me? Does he have a leg to stand on in court?
    Please help

    1. Good day
      He cannot just take her away from you. He needs your permission or a court order.
      If he makes an application to the court, the court would have to decide what is best for the child. Reading only your side of the story, it seems that he won’t have a strong case.

  26. My daughter is 4 and have been staying with me since she was 1 the mother did not want her. Now she is in n new relationship and wants to take her back. How do I apply for primary residence and what do I do if she walks in and take her

  27. My daughter is 11 months old. Her father was absent while I was pregnant and he was not with me when I gave birth. He only came into the picture after baby was born. He threatened me once. But he has been paying maintenance but nothing toward any of the medical bills. I’m not working at the moment because my daughter isn’t on formula.

    For the past 11 months we’ve had many disagreements (I’ve kept all messages). He hasn’t seen her since the 5th May 2019 due to an argument, this was mainly because he wants to take our daughter out for walks and to his family when she’s constantly crabby while he holds her. When he visits he always tends to pinch her thighs which is bad because she cries.

    Today I received a letter from a social worker stating that I am to be present at an interview. I’m not sure how this works. Should I get a lawyer? A custody lawyer to go with me.
    Please help.

  28. Goodday I am wondering my daughter is 9yrs nd het dad is currently maintaining her so how do i go about for her to have visitation rights with him coz her dad is showing no intrest in her so I want to apply for her to visit him by law???

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