Sole or Joint Custody Orders in South Africa

In South African law, child custody in divorce is settled according to the Children’s Act (amended by the Child Justice Act of 2008). If you are opting for a DIY divorce, it’s vital that you familiarise yourself with the legal requirements and implications of sole vs joint custody. Here is basic information on getting sole or joint custody orders in South Africa:

Sole Custody Orders:
What you should know

By default, both parents normally exercise equal guardianship of their legal children after divorce. A court can grant sole custody to a single guardian, however, depending on the circumstances of a case.

In South Africa, if a court grants sole custody to one parent, the parent becomes the guardian to the exclusion of the other. This means that if you have sole custody, you gain the legal right to make custodial decisions that would normally (in a marriage or in joint legal custody) require both parents’ consent.

Courts do not grant sole custody easily. In a case where a parent either shows no interest in the child or is demonstrably unable to perform a guardian’s duties, the court may grant sole custody.

Sole guardianship and successors

A sole guardian may specify a successive sole guardian in their will without consulting the other parent. The other parent’s consent is legally required, however, if a living sole guardian wishes to give up their child for adoption.

The difference between sole custody and single-parent guardianship

There are key differences between sole custody and one parent being awarded guardianship. In the case of the latter, the parent who has day-to-day guardianship of the child may make day-to-day decisions, but cannot appoint a successor guardian without consulting the other parent.

Joint custody orders: What you should know

There are two kinds of joint custody, where both parents are given legal custody of a child:
Joint legal custody grants both parents the power to decide important matters such as where and how children are educated. The child resides with one parent who has the right to decide lesser daily matters (e.g. how to supervise homework, allot time for activities such as watching TV, etc.)

In the second type of custody, joint physical custody, a child spends reasonable amounts of time with both parents. This could mean spending weeks with one parents and weekend’s with the other or spending alternating weeks in each parent’s company. Both parents in joint physical custody ideally play an active role in the child’s life post-divorce.

If you are planning a DIY divorce and there are children involved, make sure you understand the differences between sole and joint custody and the full legal implications of each. This will help you ensure you make the best possible decision for both you and your child.