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How do I get full custody over my child? Cape Town South Africa

ByOur Lawyer

How do I get full custody over my child? Cape Town South Africa

Assistance on how to obtain contact, custody or visitation to your child

Parents have an inherent right and duty to form part of their child’s lives. Here we refer to parental rights and responsibilities.  However, it often happens that parents of a child cannot see eye to eye as to what is in their child’s best interests. More often than not, when parents are divorced, separated, or not living together, issues arise regarding the children they share. And then there is the case where parents want full custody over their children.

These issues may range from the amount of contact the other parent may have, the school the child may attend, or what extra-mural activities the child should pursue. Either way, should parents not be on the same page, outside help may be required. Read on to find out more about the law, factors and your rights.

What are Parental Responsibilities and rights to a child?

The terms used to refer to the rights and responsibilities of parents to their children are referred to as “parental responsibilities and rights”. Parental responsibilities and rights are defined in the Children’s Act.

Section 18 of the Children’s Act of 38 2005 (the Children’s Act) states the following:
18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child.
(2) The parental responsibilities and rights that a person may have in respect of a
child, 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.

When to enter into a Parenting Plans?

Not going into too much detail, all parents of children should by default have certain parental responsibilities and rights to their children. It often happens that parents who are co-holders of parental responsibilities and rights, are unable to agree on how their rights should be exercised. Should that happen, then according to section 33 and 34 of the Children’s Act, they should try to agree on a parenting plan.

Basically, they should see an expert like a social worker, or psychiatrist to assist them in resolving the issues they have. As long as the person is suitably qualified, they may make use of their services. They may even approach the Office of the Family Advocate. Should all go well, a parenting plan would be drafted and entered into. This parenting plan may either be registered with the Office of the Family Advocate, or made an Order of Court.

When to approach the Child Custody Court?

If parents cannot agree on a parenting plan, then a court may have to be approached. Usually they would approach the High Court, or the Children’s Court in their area of residence. In South Africa, one does not have to make use of legal representation. In other words, you may represent yourself in Court. Many times, you do not have a choice as you cannot afford legal representation.

What is the Children’s Court?

Each magisterial area has a children’s court dealing with Children’s matters. The Children’s Court would be best suited for parents who would prefer to conduct their own case. When you approach the children’s court, they provide you with forms to fill in. They would basically assist you with the process. They will issue a summons / notice to the other parent to appear at Court. Many attorneys also make use of the Children’s Court, as opposed to the High Court, when enforcing their client’s parental responsibilities and rights.

What is the High Court?

Each province has a High Court. The Court procedure in the High Court is much more complicated than that of the Children’s Court. If you can afford an attorney,  and an advocate, they the High Court is another option. Specific documentation needs to be drafted. One is called a Notice of Motion, and the other, a founding Affidavit.

What are the serious parental issues the Court looks at?

There are various pertinent issues the court looks at when deciding how contact or visitation should be exercised. Each case is unique. In this article, we will list factors that may limit your exercising of your parental right of contact or care. They are:

Child Abuse

Unfit parenting

  •  Not all parents are fit enough to care for a child primarily. This is especially so if there is a history of irresponsible parenting.

Living Conditions

  • The law in no way discriminates against parents based on their living conditions. However, it is a factor to consider in Child Custody Cases.

Psychiatric disorders

  • Psychiatric disorders in many cases plays a role in deciding how care and contact should be exercised. If the condition is bad, a court would have to factor it in when making its decision.

How does the Court come to its decision?

The Court (Children’s Court as well as the High Court) would listen to both parents, and any expert appointment. Usually the expert would provide a report. Many times, they are the office of the family advocate or a state appointed social worker. After looking at, and hearing everything, the court would make a decision based on what is in the child’s best interest.

Sharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

Should you require any other legal services and advice, not related to family law, visit Private Legal.






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    22 comments so far

    Mark BurgerPosted on5:11 am - Oct 23, 2017

    I have been living with my gf for a few years. We have a son of 4. Lately she has been going out with friends after work and the past few weeks has been comming home at around 3 “and 4 in the morning and once just after 6 am after she told me she was working a function at a beer fest that ended 10pm the previous night. When I asked her about it she told me they finished late and just this morning when I confronted her she said they went to get something to eat the thing that bothers me most is that meal took 8 hours She has never given me reasons as to why she comes home late except for last night saying it was a colleagues farewell but on a Sunday places close at midnight. I suspect she is cheating I also have found marijuana in her draw pack in a tin contains that at first she denied. I cant live like this anymore and I will not allow this to go on around my son. I read her watsapp messages one time and I never had much time to read the messages but there where a few messages that I found disturbing. Ok ne about come over and have a line. Her so called work times are ridiculous and does not correspond with her previous work times. She attacks me one night when I was trying to play with her she grabbed my finger and twisted it and I also done the same back to her. For two days she wrapped her hand in a bandage and after that she was fine. Even went as far as carrying a plate if food with the same hand. Apparently she opened a case against me. Well I have not been approached by any social worker policeman or any government official months later she is always undermining my authority with my son. When I scold him or when I tell him to behave or go sleep and so on. She accuses me of abusing him with false accusations that my family members tell her. I have requested that we take him to a counsellor or child physiologist for evaluation by once again its all hit air. I love my son and his mom but I cant allow this to continue like this. I want to get us both away from her negligent new lifestyle and her psychological games. Please help! Sincerely Mark Burger

    Fourie GrovePosted on10:07 pm - Jan 6, 2018

    Hi. I need some advise. I’m a South African and my wife is from Philippians. We have been married 4 and a half years now. We have a son and he is 3 and half years old. He has a South African passport. My wife only recently told me that she is not happy anymore. She also after being married almost 5 years told me that she has 4 other children in the Philippians. She basically ran away and left them where the dads had to take care of them. I was shocked. 3 of them don’t want anything to do with her at all as she abandoned then as small children but the oldest only recently made contact with her. If she leaves me, who will get custody over our little guy? I love him to bits and he is a real daddy boy. Please advise as I’m afraid that one day she might get fed up and leave him as well.

      NobaPosted on5:30 am - Feb 15, 2018

      Hi there,
      Look I don’t know you or your family but I can tell you still love your wife and that so good. When I read your story I think she must be unhappy because of the love she has for the 3 kids she’s left behind witch women would be, forgive her for lying and see how you can reunite those three kids with they mom so you all can all be a family. I’m sorry if I said anything that u don’t want to hear. You and your wife a one, divorce is not an option. God bless your family.

    AngiePosted on11:34 am - Jan 10, 2018

    Good day

    My Fiance and my self is currently in a situation with his ex wife , he has two boys with her the one is 9 and the other one is 4 both the boys has been traumatised by the mother on a regular basis as she is bipolar she is taking tablets however she still has fights with her family and always phoning their father and telling him that he must come and take his children as she cannot take care of them he warned her a couple of times that if she is going to carry on like this that we would take the children from them as it is not healthy for them to be in that kind of situations well that’s what happened she kept on pushing to the point that the boys was crying to their father to come and fetch them its really breaking our hearts and we will do what ever it takes to get full custody of the boys so that they can grow up in a peaceful home with love and care and no emotional abuse what can we do from here on forward. Please advice urgently

    MoniquePosted on3:17 pm - Feb 17, 2018

    Good day. Im from South Africa. I have a question. I have a son turning 9. The dad pays maintenance yes. But usually he doesnt ask to see him his parents does. We moved last year April. And i want to move back from where i came from. We were never married. Am i allowed to do that. I dont have anyone in my life and i love him dearly along with my twins. Im so scared that he’ll try and take him away from me. And i cant bear the thought of losing my son. Please help

    zeePosted on9:07 am - Feb 23, 2018

    Hi there i am sitting with a huge problem i was married for 11 years and me and my husband has been together for 15 years however he accuses me of cheating today just because i spoke to a guy i fell pregnant with our fourth child but one died when i was 5 months pregnant he threw me and my kids out of his mothers house i took our clothes and wen to my mother however he didnt even leave me with a teaspoon or a bed. Since he threw me out he started sleeping out during the week and weekends as well. he left me when my baby was one month old we were married muslim rights today he willingly proud to sleep by his new gf and he supports he and her kids and expects my kids to wear her kids second hands clothes little did i know that he had been seen her long time. he made my name so bad i eventually gave him on for maintenance where he didnt pitch up for court every time he takes my kids or send someone to fetch my two kids without telling me or my mother as he is saying my baby isnt his i have rules during the week and he just rocks up and takes them like he wants which i dont think is fair. he doesnt spend anytime with my kids especially his off days and weekends because he need to see to his gf and her two kids my question is can i do something to stop him from taking my kids because he drinks and smoke dagga infron of my kids and forces them to call his gf mommy now he threatens me to say his going to take them away from me and put them in by his gfs kids school i am the only one working for my kids i cannot afford a lawyer my kids are unsafe with him what should i do to stop him and can i sue him if the paternity test comes back for defermation of character? please advise further thank you

    jessPosted on8:42 pm - Feb 23, 2018

    Hi there i have a question if you can help that would be great, The father pays maintenance thanks to the court order, his only seen his child about 6 times since she has been born and barely any phone calls from him to her, he makes sure his mails states “what a great father he is for paying maintenance and how he wants to be in her life” but he does not really try as i said not that many phone call maybe 2 or 3 calls in the last 3 years. My question is, is there a way to take his parental rights away from him?

      Our LawyerPosted on2:14 pm - Feb 27, 2018

      The court would need to see if it would be in the child’s best interest to take the father’s parental responsibilities and rights away from him. We suggest you speak to a social worker to determine if it would indeed be in her best interests. The Courts listens to what the experts says.

    MizzVPosted on2:59 pm - Feb 28, 2018

    Hi there, I need advice please. I am currently 7 month pregnant. The father of my child wants nothing to do with our child. I will not be putting his name on the birth certificate. He said that he would like to sign over his rights as a parent and I have been told that I would have to have proof that I have full custody over my child when I register his birth. Is this true and how do I go about getting him to sign over his rights ?

    RaziaPosted on8:41 am - Mar 4, 2018

    Good day

    I would like to set up an urgent consultation with Adv Muhammad AbdulRoaf. Its a maintenance matter that’s being delayed unnecessarily and affecting my kids emotionally. Require urgent assistance. Please contact me.

    DamentiPosted on8:51 pm - Mar 6, 2018

    Hi please help. My daughter needs to be enrolled in grade 1. And unfortunately I was told that I can’t because I need her father Identity document number. He hasn’t been apart of our lives. Neither has he paid maintenance or made an attempt to be in her life. Yet I tried countless trying to get him to come and see her. I need to know how do I go about getting his document because he wouldn’t give it to me. And also I need him to sign over all his legal rights regarding her. Please help. Thank you

    richadPosted on7:32 pm - Mar 7, 2018

    Hi i had a gf few years ago we end up having a daughter, the mother started having an afair with sum1 else afta my daughter turned 2 so i moved out, that very same day the bf moved in. They r married today and shes got her 4th child now from 4 diffrent men, her 2nd child’s father took him in custody and she cant even look proper after the 1st born, now i need my child in my custody coz theres no way in hell she can luk afta a child, now she took me to court for 1800r maintenance i can never give her that money i’ d rather luk afta my own child, plz tell me what am i to do and who can i see regarding my situation

      Our LawyerPosted on3:43 pm - Mar 11, 2018

      Try to see if you can get a social worker to mediate the issue. If that is not possible, then we advise you approach the Childrne’s Court in the area where the child/mother stays.

    mrs gPosted on10:47 am - Mar 12, 2018

    I have girl child aged 3 her father pay maintain her with R750 a month he gets to take her on Sundays for the day only after he drops her of he always send me messages like our little girl told him I hit her this is not true I left him because he used to assault me during my pregnancy I love my bby a lot I don’t do such things she is my gem what can I do pls help me

    ShereePosted on6:37 am - Mar 17, 2018

    Hi. Im in.desperate need of help I dont know what to do anymore. I had my daughter at a young age, at that time i myself wasnt registered i only managed to get myself registered at age 23. When my daughter was 3 months old i.got her birth certificate in the mail and turned out her grandmother (mother of father) somehow registered her. When.i got myself registered i went to see how my daughter was registered because as to my knowledge a child can not be registered without both parents details. I got denied because as to records im not my daughters mother. My daughter is now 11 her biological fathers refused to fix the details and to come sign. Last time he saw her she was 3 years old. When she turned 5 and had to start schooling i asked for help on maintenance and i was told he would rather sign away his rights than pay. I offered accomodation and to pay his flight just so he could do this. 6 years later he has two other daughters and hes running from those mothers too. His family is of no help they help keep him hidden from us. Ive been to home affairs numourous times. Ive been to childrens court with no help. I really need help on what to do and how to get him off my daighters nae as he has no part in any of her life yet the law isnt of much help.

      Our LawyerPosted on8:25 pm - Mar 17, 2018

      Good day

      We would have advised you to go the the children’s court. But you said you have already done that. The best would then be to appoint an attorney to take this matter further. The attorney may decide to approach the high court should it need be.

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