When parents separate or divorce, decisions about where a child will live, who will care for them, and how they will be supported are among the most difficult and emotionally charged. In South African family law, every one of these decisions is guided by a single overriding consideration: the best interests of the child.

This principle is more than a moral guideline — it’s a legal standard. It shapes how courts assess custody, contact, guardianship, and maintenance arrangements. It ensures that, regardless of the parents’ circumstances or disagreements, the focus remains firmly on what is best for the child’s long-term wellbeing.

Whether you're going through a contested custody dispute or drafting a parenting plan, understanding how the best interests principle works is essential. It can help you make informed choices, avoid unnecessary conflict, and prioritise your child’s emotional and developmental needs from the very beginning.

What Does “Best Interests of the Child” Mean in South African Law?

The “best interests of the child” principle is a foundational element of South African family law, enshrined in the Children’s Act 38 of 2005 and recognised in the Constitution. It serves as the lens through which all decisions affecting a child must be viewed — whether those decisions relate to custody, access, guardianship, or any other aspect of parental responsibility.

Legal Foundation

Section 7 of the Children’s Act sets out a detailed list of factors that must be considered when determining what is in a child’s best interests. These include:

• The child’s age, maturity, and stage of development
• The nature of the child’s relationship with each parent or caregiver
• The child’s physical and emotional security
• The likely effect of any change in the child’s circumstances
• The need for stability and continuity
• The child’s cultural, linguistic, and religious background
• The views of the child, if they are of an age and maturity to express them

The law does not prioritise one parent over another. Instead, it encourages a holistic and balanced approach that puts the child’s welfare at the centre of every decision.

A Shift in Perspective

This principle marks a shift away from parent-centred thinking — where adults negotiate based on their own rights or grievances — and toward child-centred outcomes. It asks:

• What arrangement supports the child’s emotional development?
• What ensures their daily life is stable, safe, and supportive?
• What allows them to maintain strong, healthy relationships with both parents?

By focusing on the child’s lived experience rather than just legal entitlements, the best interests principle promotes fairer, more sustainable family law outcomes.

When and Where the Principle Applies

The best interests of the child principle applies across all areas of law that affect children — not just in custody disputes. South African courts, legal professionals, and even government departments are required to place this principle at the forefront when making any decision that impacts a child’s life.

Custody and Care

One of the most common applications of the principle is in decisions about primary residence and contact after divorce or separation. The court will not automatically favour one parent over another. Instead, it will consider which arrangement provides the greatest stability, emotional support, and developmental benefit to the child.

Guardianship and Parental Responsibilities

Where there are questions around who should have guardianship — for example, the authority to make decisions about schooling, travel, or medical care — the court applies the same standard. The focus remains on what outcome best serves the child’s overall wellbeing.

Child Maintenance

In maintenance matters, the court assesses the financial needs of the child and the ability of each parent to contribute. The best interests principle ensures that the child’s right to adequate support is prioritised above parental disputes or preferences.

Relocation and Travel

If one parent wants to relocate — whether within South Africa or abroad — and the move would affect the child’s relationship with the other parent, the court will apply the best interests principle to decide whether the move should be allowed.
This includes weighing the potential benefits of relocation against the harm that may come from disrupting a close parental bond.

Education, Religion, and Healthcare

Disputes about a child’s schooling, religious upbringing, or medical treatment are also resolved by asking: What is in the child’s best interests? Courts generally expect parents to work together, but when agreement isn’t possible, the magistrate will decide based on what promotes the child’s holistic development and security.

Key Factors Courts Consider

When applying the best interests of the child principle, South African courts look beyond surface-level arrangements. They examine a range of interconnected factors to determine what will provide the child with the greatest sense of stability, security, and emotional wellbeing — both now and in the future.

Here are some of the core factors courts consider:

Age and Maturity of the Child

Young children often require more routine, stability, and continuity in caregiving, while older children may have stronger opinions about where they feel most secure. Courts will weigh a child’s developmental stage carefully in deciding what arrangements will work best.

Relationship with Each Parent

The quality of the bond between the child and each parent is central. Courts consider how actively involved each parent has been, the strength of emotional ties, and each parent’s willingness to encourage a healthy relationship with the other parent.

Stability of the Home Environment

Children thrive in stable, predictable environments. Courts assess the emotional and physical environment of each home, including the presence of extended family support, schooling continuity, and general day-to-day caregiving arrangements.

The Child’s Views and Preferences

If a child is of sufficient age and maturity, the court may take their preferences into account. This does not mean the child makes the final decision — rather, their voice forms part of a broader picture.

History of Caregiving and Involvement

Who has historically been the child’s primary caregiver? Has one parent been more consistent in managing the child’s routine, education, health, and emotional wellbeing? Courts consider past involvement as an indicator of future stability.

Any Evidence of Abuse, Neglect, or Harm

Where there is any allegation or history of domestic violence, substance abuse, emotional neglect, or coercive behaviour, the court will investigate carefully. The child’s safety takes absolute priority.

Sibling Relationships and Social Networks

The bond between siblings, as well as the child’s ties to school, friends, and extended family, are important. Courts may avoid separating siblings or disrupting a child’s broader support network unless absolutely necessary.

Common Myths About Child Custody in South Africa

When emotions run high during divorce or separation, it’s easy for misinformation to spread — especially around child custody. Let’s address some of the most common myths that often lead to confusion or unrealistic expectations.

“Mothers Always Get Custody”

This is one of the most widespread misconceptions. While historically mothers were more likely to be awarded primary residence, South African law no longer favours one parent over the other based on gender.
Instead, courts consider which parent can best meet the child’s needs — emotionally, physically, and developmentally — and make decisions based on the best interests standard, not assumptions about traditional roles.

“Children Can Choose Which Parent to Live With”

Children do not have the legal authority to decide where they live. However, their views can be taken into account, especially if they are older and mature enough to express reasoned preferences.
That said, the child’s wishes are just one factor in a broader assessment. The final decision always rests with the court, and it must reflect what will best serve the child’s long-term wellbeing.

“Fathers Have No Rights”

Fathers often feel that the system is stacked against them — but in law, both parents have equal responsibilities and rights, provided paternity is established.
Fathers can apply for primary care, contact rights, or joint custody, and courts are increasingly supportive of co-parenting arrangements when both parents are actively involved and committed to their child’s welfare.

“If My Ex Pays Maintenance, They Get More Rights”

Maintenance and contact are legally separate. A parent cannot withhold access to a child because maintenance hasn’t been paid — nor does paying maintenance automatically grant more custodial rights.
Both parents have a duty to support their child, and the child has a right to maintain a relationship with both parents, where safe and appropriate.

Parenting Plans and Their Legal Weight

A parenting plan is a formal written agreement between parents that outlines how they will share responsibilities and decision-making for their child after separation or divorce.
While these agreements are often negotiated outside of court, they carry significant legal weight — especially when aligned with the best interests of the child.

What Does a Parenting Plan Include?

A well-drafted parenting plan typically addresses:

• Primary residence – where the child will live
• Contact arrangements – when and how the child will spend time with each parent
• Decision-making – how major choices (education, healthcare, religion) will be made
• Holiday and travel arrangements
• Dispute resolution mechanisms – how future disagreements will be handled

Parenting plans can be as simple or detailed as needed, depending on the complexity of the family’s needs.

When Are Parenting Plans Required?

Parenting plans are mandatory when:

• Parents share joint parental responsibilities and rights, and
• There is disagreement about how those responsibilities should be exercised

In these cases, parents are expected to attempt to agree on a plan — often with the assistance of attorneys, social workers, or the Family Advocate.

Once agreed upon, the plan can be:

• Made an order of court, giving it the force of law; or
• Registered with the Office of the Family Advocate, making it enforceable

Why Legal Guidance Matters in Drafting a Parenting Plan

While it may be tempting to draft a parenting plan informally, doing so without legal input can lead to gaps, inconsistencies, or unenforceable terms.
An experienced legal professional ensures the plan:

• Complies with the Children’s Act
• Aligns with best interests principles
• Anticipates future changes or conflicts
• Can withstand legal scrutiny, if challenged in court

A carefully considered parenting plan helps prevent misunderstandings, supports stability for the child, and makes co-parenting more predictable for everyone involved.

How the Family Advocate Gets Involved

The Family Advocate plays a crucial role in protecting the rights and wellbeing of children during divorce, separation, or any dispute involving parental responsibilities. As an independent office within the Department of Justice, the Family Advocate ensures that all decisions affecting children are made in their best interests — and not driven by conflict between parents.

When Is the Family Advocate Required?

In South Africa, the Family Advocate becomes involved when:

• Parents disagree on issues of custody, care, or contact
• A parenting plan needs to be assessed or registered
• The court requests a report or recommendation to assist in deciding what is in the child’s best interests
• One parent seeks to relocate with the child and the other parent objects

The Family Advocate may also be approached voluntarily by parents seeking guidance or mediation before taking their matter to court.

What Does the Family Advocate Do?

The Family Advocate:

• Conducts interviews with parents, and sometimes the child (if appropriate)
• Assesses the child’s living environment and emotional circumstances
• Considers the family dynamics and any concerns raised by either party
• May consult social workers or psychologists, where necessary
• Produces a report and recommendation for the court, advising on what arrangement best serves the child’s interests

While the court is not bound by the Family Advocate’s report, it is often highly persuasive and helps the magistrate make informed decisions that centre the child’s needs.

Working Cooperatively Can Help

Parents who engage with the Family Advocate in good faith — openly and honestly — are more likely to reach resolutions that avoid litigation. This not only benefits the child but also spares both parties from prolonged emotional and legal strain.

Mediation vs Litigation in Child-Related Matters

When disagreements arise about children — whether it’s about primary residence, contact, or decision-making — parents are encouraged to resolve issues through mediation before heading to court. This approach often leads to more cooperative, child-focused outcomes.

Mediation - A Collaborative Alternative

Mediation involves a neutral third party (such as a trained mediator, attorney, or Family Advocate) who helps the parents reach agreement. It is:

• Voluntary (unless ordered by the court)
• Confidential
• Less adversarial than court proceedings
• Faster and more cost-effective

For many families, mediation results in parenting plans that both parties can live with — and more importantly, arrangements that protect the child from drawn-out conflict.

Mediation is particularly useful when parents are willing to cooperate but need help clarifying logistics or working through disagreements constructively.

Litigation - When Mediation Fails

If mediation fails or is not appropriate — for example, in cases involving abuse, severe conflict, or one parent being unreasonable — the matter may need to be resolved through litigation.

In court:

• A magistrate will make the final decision based on evidence and legal arguments
• The Family Advocate may be asked to provide a report
• Both parties will likely require legal representation

While sometimes unavoidable, litigation is usually the most emotionally and financially demanding route. Courts encourage parents to exhaust all reasonable efforts to settle child-related matters before resorting to a trial.

Why Mediation Aligns with the Best Interests Principle

Children benefit when their parents communicate respectfully, minimise conflict, and keep their wellbeing at the centre of every decision. Mediation supports this by fostering solutions that are more likely to be followed — and less likely to break down over time.

What Parents Can Do to Support Their Child’s Best Interests

While legal principles and court processes play an important role in shaping parenting outcomes, much of what affects a child’s wellbeing lies in how parents conduct themselves during and after a separation.

Here are some of the most effective ways parents can actively support their child’s best interests:

Prioritise Stability Over Control

Children need a sense of routine and safety. Avoid abrupt changes in living arrangements, school, or caregivers unless absolutely necessary. Stability helps children process the transition more easily.

Keep Conflict Away from the Child

Children should never be exposed to adult disputes. Speaking negatively about the other parent, asking children to “choose sides,” or using them as messengers places emotional pressure on them and can cause long-term harm.

Encourage a Relationship with Both Parents

Unless there are legitimate safety concerns, children benefit from having consistent and meaningful contact with both parents. Supporting this relationship — even when it’s difficult — shows maturity and puts your child first.

Be Flexible and Cooperative

No parenting plan can account for every scenario. Life changes, and flexibility is key. Communicate proactively, compromise where possible, and avoid treating shared parenting as a win/lose battle.

Honour Agreements and Court Orders

Following through on what’s been agreed or ordered by the court shows reliability and helps build trust — both with the other parent and with your child.

Get Legal Advice Early

Making decisions without understanding your legal rights or obligations can backfire. A legal professional who understands the best interests framework can help you navigate difficult choices and create child-focused solutions from the outset.

Why Legal Guidance Matters in Parenting Disputes

When your child’s future is at stake, legal decisions carry emotional weight — and long-term consequences. That’s why having the right legal guidance is so important. It’s not just about drafting documents or attending court; it’s about ensuring that every step taken aligns with your child’s best interests, both now and in the years to come.

An experienced family law attorney can help you:

• Understand your rights and responsibilities as a parent
• Navigate complex legal processes like custody, maintenance, and parenting plans
• Engage meaningfully with the Family Advocate, mediators, and other professionals
• Avoid unnecessary conflict by offering clear, solutions-focused advice
• Draft agreements that are legally sound and tailored to your family’s unique circumstances

Not all legal practitioners approach parenting matters with the same care. Working with attorneys who bring both legal clarity and a child-focused mindset can make all the difference — especially when you want to avoid prolonged conflict and ensure your child remains protected and supported throughout.

When emotions run high, steady guidance from someone who understands the law and the human side of parenting disputes can bring much-needed perspective — and lasting peace of mind.

Children First, Always

Separation and divorce are never easy — but when children are involved, every decision carries greater weight. The best interests of the child principle helps parents, courts, and legal professionals stay focused on what matters most: the child’s wellbeing, stability, and development.

No matter how complex or emotional the situation may be, there is always a path forward that protects your child while respecting your rights as a parent. With sound legal guidance, open communication, and a willingness to prioritise your child’s needs over conflict, it’s possible to build a future where your child continues to feel secure, supported, and deeply cared for.

Putting your child first isn't just a legal standard — it's a commitment that shapes every part of the parenting journey, long after the legal process ends.

Contact us.