We often think that custody is only an issue when there is a breakup between the parents. However, it is relevant as long as the child is a minor.
What is custody?
“Custody” is defined in the Family Law (Guardianship of Minors, Domicile and Maintenance) Act as “the right to possession and care of a minor”.
Now, there’s a difference between “legal” custody and “actual” custody. Legal custody means that the person has parental rights and duties towards the child. Actual custody means the physical possession of the child. Theoretically, you can have one without the other.
The Default Position
Before there are any proceedings or orders by the Court, the default position is that both parents share custody of the child. That means that neither parent can make ‘big’ decisions about that child without the consent of the other for e.g. changing the child’s name. (See our article on International Child Abduction for a more dramatic example.)
The exception to this rule is where the child is born out of wedlock, the father’s name is not on the birth certificate and the child’s paternity has not been determined by the court according to the Status of Children Act. In that case, the mother has sole custody of the child.
In cases of sole custody, the parent does not have to consult anyone else when making decisions about the child.
Applying for custody
Anyone can apply for legal custody or access in respect of a minor. (Yes, even a stranger.) You can apply in the High Court or your district Magistrates’ Court.
We know that some fathers are concerned about applying for sole custody because they believe that the mother is the preferred parent. However, the major concern for the Court in these applications is the best interest of the child. Therefore, if it is in the best interest of the child for the dad to have sole custody, that’s the order the court will make.
What about access?
Access or visitation is the right to spend time with the child. You can have access with or without having custody.
Where there is joint custody with access, the parent with whom the child regularly stays is said to have ‘care and control’ of the child and is responsible for his or her daily care. While the other parent has the right to spend time with the child he or she would not be involved in those everyday decisions. However, both parents must still agree on the big decisions.
Types of access
There are two types of access – liberal and structured. Liberal access means that the parent and child don’t have fixed times for visitation. On the other hand structured access is very rigid, with set dates and times.
Which arrangement is best?
Custody and access arrangements are unique to each family situation. It’s not a one-size-fits-all. Like the court, we always recommend that all parties come together and find a solution that’s in the best interest of the child.
Disclaimer: All our articles are written by attorneys. However they are for information purposes only and do not constitute legal advice. If you have a legal issue, please consult a qualified attorney.