Child custody disputes. What are mothers and fathers’ rights when it comes to custody over their child?

How to get custody over your child?

What are child custody disputes? Read some questions and answer from mother and father.

Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved.  Parents care much more for their children than they do for worldly things.  Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress.

Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.

What are the rights of an unmarried father to his children?

Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short states:

  • At the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • You contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • You contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

May an unmarried father be the primary caregiver of a child born out of wedlock?

Many fathers would have been married to the mother. Others would have meaningfully partaken in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of marriage when it comes to fathers’ rights.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child,  and the father has parental rights and responsibilities over such a child,  he can obtain custody or primary care over the child.  What the law looks at is what is in the child’s best interest should such a request be made.  If it is indeed in the child’s best interest for the father to have custody over the minor child,  then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests.  Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child,  the court may require assistance from other parties.  For example, a social worker,  psychologist,  or the office of the family advocate.  This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care.  The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest.  Therefore, various factors have to be considered in determining what is in the child’s best interest.  If a party can prove that a child is being unreasonably neglected while in the other party’s care,  then that would be information that can be used against the other party.  One such factor would be the abuse of alcohol,  drugs,  and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters.  The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child.  What the law is concerned with,  is what is best for the minor child.  Many fathers can better care for a minor child than the mother.  In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth.  This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self.  This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live.  In most cases, the parties would agree that the child should reside with the mother.  When they do not agree on this issue the matter usually makes its way to the court.  This is when the court will have to determine what is best for the minor child.

If the court determines that the minor child would best be cared for by the mother, then the court would make such an order.  However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child,  then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different.  However, the court is guided by the best interest of the child principle.  The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child.  In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.


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19 thoughts on “Child custody disputes. What are mothers and fathers’ rights when it comes to custody over their child?

  1. I have a 4 year old whose father only started supporting him financially after being forced by the court when he turned 3,the father has never seen the child, or spend time with him, never shown interest to despite many times I tried to reach out to him to make an effort. Non of his family has shown interest or being supportive and now since he started to pay maintenance he has been threatening me that he is coming for the child, he will change his surname to his and take him to stay with his family. How can I handle this as I have never deprived him of seeing or spending time with the child but he just doesn’t want to but is bitter enough to wanna hurt me by taking the child? Can the court grant him the right to take the child and change his surname?

  2. Hello. Im a mother to a 5 year old son. My son is living with me full time and visits his dad regularly. So we’re having an issue that apparently Im not allowed to have school holidays with my son because he lives with me. His dad claims that every holiday should be his as Im living with him. Is there an Act that says so??

  3. Hi please help, I’m currently unemployed woth a soon to be 9month old baby we currently live with his dad and he supports us financially and he has threatened to take my baby from me and get full custody of him .

    I would like to go back to Durban to get help and support from my family as our relationship isn’t doing so well and he said he would charge me for kidnapping and get me arrested as he doesn’t consent to this.

    Please help me I’m really stressed. What are my rights as a mother.

  4. Hii I am 20 years old and my baby is now 6 months she is conceived out of wedlock and the father and I are parting ways now I just want to know what are my rights to my child if I would want to move her to another city with me

    1. If the father is exercising contact with the child, and involved in the child’s life, then you would need to discuss the move with him. If disagrees, then you need to approach Children’s Court to avoid issue arising.

  5. Hi my name is Enoch i have a problem,,i broke up with a mother of my kids and she left me with my kids for almost 3 years now she came lied to my mother that she want to spend the weekend with the kids she never return with the kids i found put that she went to lesotho with my kids without my concern what should i do

  6. Hi please assist me on my 5 year old Boy whom I took to live with he’s father and grandma bcoz my mom has passed on when the baby was few months old and after that my sister also passed on had to use my savings to for the funerals both and was left broken from pain n broke like hell I started taking pills bcoz of depression then I had to take the baby to the father Wich was not supportive at the time,I’ve been in contact and visiting and buying Clothes for my boy,now the problem is they don’t want me to have him over to visit me and he’s sister’s I have 2 girls n one boy that’s him, please assist on how am I suppose to deal with this how do I take legal actions on this matter.

  7. Please help. I once slept with a guy and fell pregnant. So he knew I was pregnant but I didn’t tell that it’s his child as we only had a once off thing. this year February I told him that it’s his child. So he wanted a dna. I told him he can do it I don’t have a problem. Now it’s November still he hasn’t done a DNA. When I reach out to me he says he will do DNA and go to court to get full custody of my child. He says he will take her away from me

  8. if parents arent married but live together and the father is abusive and does not provide and income where the mother bears all the bills. Will the father have visitation rights or how will the law work in this case

  9. I am currently in this debacle where my child is 4 months old, the mother and I were engaged and now, things turned for the worse. I am the primary income person in the household as the mother does not work and the little money she gets, she spends on creating a breeding company for exotic animals. She also has a 9 year old daughter from another relationship. I would like to have full custody of my 4 month old child as a father as I know I will be able to take care of the child as we have our routines to each to help the child on certain days. We both have family members who will go above and beyond to help us.

  10. Me and my baby daddy slit and it’s been 4 days and he wants to see the kid, I asked him to give me time to heal and to get me and my son together, am I wrong for this

  11. dont get me wrong i understand that dads need to see there kids, in my case i dont get support i get support when he feels like sending something iam in a case where hes gf send me msg sating i must not make him an atm i feel like he has a change to be with his child up until he decided other wise we were a happy couple up until he desided to cheat, so in my case why should i make effort for him to see hes child when i dont get support from him i get money from him for his child when he feels like it but on his social media hes enjoying life not like hes struggeling so i feel like you dont help me with my son so why should i let him be part of his son life when i secriviced from him since birth now he want full custody.

  12. I am currently pregnant,I have a 5year old son with my ex husband whom I still live with as we try to share custody.My unborn babys father lives in another province and wants me to relocate. According to our settlement I cannot remove my son from his school or the Province. How do I change this and will I be granted permission to relocate without a fight?

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