Child Custody (Care and Contact) Explained: South Africa's Children's Act (2026)

Many people still search for 'child custody' or 'child access' in South Africa, but the law changed the terms in 2005. This guide explains what replaced them, who has parental rights automatically, and how a dispute over a child is resolved.

Information last verified on 23 July 2026. This page provides general legal information about South African child law and does not constitute legal advice in an individual case.

The Modern Terms: Parental Responsibilities and Rights

The Children's Act 38 of 2005 replaced 'custody' and 'access' with 'parental responsibilities and rights', defined in section 18 as the responsibility and the right to care for a child, to maintain contact with a child, to act as the child's guardian, and to contribute to the child's maintenance. A person can hold some or all of these separately; guardianship, for example, covers decisions such as consenting to a child's marriage or leaving South Africa, and does not automatically mean the child lives with that person day to day.

Mothers: Automatic Full Rights

Under section 19, a child's biological mother has full parental responsibilities and rights, whether she is married or unmarried. This is not conditional on anything else, subject only to a narrow exclusion for a child born of a surrogacy arrangement.

Married Fathers: Automatic Full Rights

Under section 20, a biological father has full parental responsibilities and rights if he is married to the child's mother, or was married to her at the time of conception, at the time of birth, or at any point between conception and birth. Marriage at any of these three points is enough; the father does not need to still be married to the mother for the rights to apply.

Unmarried Fathers: Two Routes

An unmarried biological father does not get parental responsibilities and rights automatically. Section 21 gives him two separate routes to acquire them:

• Living with the mother: if, at the time of the child's birth, he is living with the mother in a permanent life partnership.
• Meeting three conditions together, regardless of living arrangements: he consents to be identified, or successfully applies to be identified, as the child's father, or pays damages under customary law; and he contributes, or has attempted in good faith to contribute, to the child's upbringing for a reasonable period; and he contributes, or has attempted in good faith to contribute, towards the child's maintenance expenses for a reasonable period. All three parts of this second route must be met, not just one.

Whether or not a father acquires parental responsibilities and rights under section 21, his duty to pay maintenance for the child is unaffected either way, and this applies regardless of whether the child was born before or after the Children's Act came into force. A dispute over whether an unmarried father meets these conditions goes first to mediation, through a family advocate, social worker or other suitably qualified person, and is reviewable by a court.

Parenting Plans

Where co-holders of parental responsibilities and rights are struggling to agree on how to exercise them, section 33 requires them to first try to agree a parenting plan before approaching a court. In preparing the plan, they must seek the assistance of a family advocate, social worker, psychologist, or another suitable form of mediation. Once written and signed, a parenting plan may be registered with a family advocate or made an order of court, but this is optional: registration or a court order is not a requirement for the plan to exist, only for the added enforcement mechanism that comes with formal status (sections 33 and 34).

Best Interests of the Child

Wherever the Children's Act requires the best-interests-of-the-child standard to be applied, section 7 sets out a list of factors, including the nature of the relationship between the child and each parent or caregiver, the likely effect on the child of any change in their circumstances, the need for the child to be raised in a stable family environment, and any family violence involving the child or a family member. A child who is old enough and mature enough to participate in a matter concerning them also has the right to do so, and their views must be given due consideration (section 10).

The Family Advocate

The Office of the Family Advocate assists parents in reaching agreement on disputed issues, and where they cannot agree, evaluates the circumstances in light of the child's best interests and makes a recommendation to the court. Its services to the public are rendered free of charge, though a party may need to pay separately for additional expert reports, such as a psychological evaluation, where these are needed.

Related Reading

For how these arrangements are addressed when a marriage ends, see divorce in South Africa, which requires a court to be satisfied that arrangements for a child's welfare are satisfactory before granting a decree. For claiming or enforcing maintenance for a child, see Maintenance Court. Where there is abuse involving a child or family member, see protection orders. The South Africa family law section and the South Africa Laws hub link the wider site.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Frequently Asked Questions

Does South Africa still use the term 'child custody'?

Not in law. The Children's Act 38 of 2005 replaced 'custody' and 'access' with 'parental responsibilities and rights', covering care, contact, guardianship and contributing to maintenance. Many people still search using the older terms.

Does a mother automatically have full parental rights in South Africa?

Yes. Under section 19 of the Children's Act, a biological mother has full parental responsibilities and rights whether she is married or unmarried.

Does an unmarried father have parental rights in South Africa?

Not automatically. An unmarried father acquires full parental responsibilities and rights either by living with the mother in a permanent life partnership at the time of the child's birth, or by meeting three conditions together: being identified as the father, and contributing in good faith to both the child's upbringing and maintenance for a reasonable period.

Does an unmarried father still have to pay maintenance if he does not meet these conditions?

Yes. The duty to pay maintenance for a child is separate from parental responsibilities and rights, and applies regardless of whether the section 21 conditions are met.

Do parents have to register a parenting plan with the court?

No. Section 34 of the Children's Act makes registering a parenting plan with a family advocate, or making it an order of court, optional. Struggling co-holders must first try to agree a plan before going to court, but the plan itself does not need formal registration to exist.

Is the Family Advocate free to use?

Yes. The Office of the Family Advocate renders its services to the public free of charge, though a party may still need to pay for additional expert reports, such as a psychological evaluation.