Family Law Matters

Custody & Access

Custody & Access

Before the creation of the Children’s Act, 38 of 2005, “contact and primary residence” in respect of children were commonly referred to as “custody and access” to children. Under the Children’s Act, these concepts are now found under the umbrella title of “Parental Responsibilities and Rights”. The rights found under the Parental Responsibilities and Rights must be applied in terms of “best interest” principle, in other words, a parent will only acquire and exercise these rights if it is in the best interest of the minor child.

Typically one parent will be vested with the primary residence of that child whereas the other parent will acquire reasonable contact with that child. In terms of Section 18 of the Act, a parent who acquires Parental Responsibility and Rights will acquire either specific or full rights in respect of a child.

It is important to note that Parental Responsibilities and Rights include the responsibility and the right to care for the child, to maintain contact with the child, to act as a guardian of the child and to contribute of course to the maintenance of the child.

In terms of Section 19 of this Act the biological mother of a child automatically acquires full parental responsibilities and rights in respect of a child. The position in respect of the father is somewhat different. The Act specifically differentiates between married and unmarried fathers. If a father is in fact married to the mother of the child, the father acquires full Parental Responsibilities and Rights in respect of the child at the birth of the child due to the fact that he is married to the child’s mother.

The position in respect of unmarried fathers is different in that the father could potentially acquire full parental rights and responsibilities if he satisfies certain conditions which are stated in Section 21 of the Act. In terms of Section 21, the father would acquire the said rights if at the time of the child’s birth he was living with the mother in a permanent life partnership or if regardless of whether he lived with the mother or not he consents to himself being identified as the child’s father and he

Contributes towards the child’s upbringing for a reasonable period, and he
Contributes or attempted in good faith to contribute towards the expenses in connection with the maintenance for the child.

It is really important to note that should any dispute in this regard arise between the parents as to what rights the father has acquired, the matter must be referred to mediation first before any party may approach the Court for a ruling in this regard. One should also remember that not only is the father allowed to approach the High Court, but he may now also approach the Regional Court or the Children’s Court for the appropriate relief.

For more information please contact our office for a consultation on 012 664 9400.


Divorce can be a difficult time for a family. Not only are the parents realizing new ways of relating to each other, but they are learning new ways to parent their children. When parents’ divorce, the effects of divorce on children can vary. Some children react to divorce in a natural and understanding way, while other children may struggle with the transition.

Children are resilient and with assistance the divorce transition can be experienced as an adjustment rather than a crisis. Since the children in a divorce vary (different temperaments, different ages), the effects of divorce on children vary, too. Du Toit Attorneys understands this and approaches a divorce by understanding what the effects are on children of all dispositions.

While a do-it-yourself divorce may be acceptable in some situations, but most people should consider hiring an attorney to represent his or her interests.

Here are five reasons that a person should consider hiring an attorney during a divorce proceeding.

  • Expert advise
  • Reduce stress
  • Avoid mistakes
  • Clear and binding agreements
  • Avoid delays

Let Du Toit Attorneys take care of your divorce matter, because you need to focus on yourself and your children.


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