Introduction
A common question posed by unmarried parents is whether it is legally possible to share custody of a child. Many assume that shared custody is reserved only for married or divorced parents. This assumption is incorrect. South African family law recognises that unmarried parents may share custody, provided such an arrangement serves the best interests of the child.
This article explains the legal position regarding shared custody for unmarried parents, the requirements for such arrangements, and the factors courts consider when determining whether shared custody is appropriate.
The Legal Framework
The issue of custody, now referred to as care, is governed primarily by the Children’s Act 38 of 2005. The Act abolished the traditional concept of “custody” and replaced it with a child-centred framework focused on parental responsibilities and rights.
Parental responsibilities and rights include:
- Care of the child
- Contact with the child
- Guardianship
- Maintenance of the child
The Children’s Act applies equally to married and unmarried parents, with the overriding principle being the best interests of the child.
What Is Shared Custody?
Shared custody, more accurately referred to as shared care, is an arrangement where both parents actively participate in the day-to-day care and decision-making responsibilities of the child.
Shared care does not necessarily require an equal 50/50 division of time. Instead, it involves:
- Meaningful involvement by both parents;
- Regular and substantial contact;
- Shared responsibility for the child’s upbringing.
Do Unmarried Parents Have the Right to Share Custody?
Yes. Unmarried parents may share custody, provided both parents have parental responsibilities and rights in terms of the Children’s Act.
An unmarried mother automatically acquires full parental responsibilities and rights at the child’s birth.
An unmarried father acquires parental responsibilities and rights if he meets the requirements set out in section 21 of the Children’s Act, or if such rights are granted by agreement or court order.
Once both parents hold parental responsibilities and rights, they may legally agree to or apply for a shared custody arrangement.
Parenting Plans and Shared Custody
The Children’s Act encourages parents to resolve care and contact arrangements through a parenting plan rather than litigation.
A parenting plan may regulate:
- The child’s primary residence;
- Contact schedules;
- School holidays and special occasions;
- Decision-making responsibilities;
- Dispute resolution mechanisms.
A parenting plan may be registered with the Family Advocate or made an order of court, giving it legal enforceability.
When Will a Court Grant Shared Custody?
Where parents cannot agree, a court may be asked to determine whether shared custody is appropriate. The court will consider several factors, including:
- The best interests of the child;
- The age and developmental needs of the child;
- The relationship between the child and each parent;
- Each parent’s ability to provide a stable and nurturing environment;
- The geographical proximity of the parents;
- The level of cooperation and communication between the parents;
- Any history of abuse, neglect, or domestic violence.
Shared custody is unlikely to be ordered where parental conflict is high or where cooperation is lacking.
The Role of the Family Advocate
In disputed shared custody matters, the Office of the Family Advocate may be appointed to conduct an investigation. This typically involves:
- Interviews with both parents;
- Consultation with the child, where appropriate;
- Home assessments;
- Recommendations to the court.
While the Family Advocate’s report is not binding, it carries significant weight in court proceedings.
Shared Custody and Maintenance
Shared custody does not eliminate a parent’s obligation to pay maintenance. Maintenance is determined based on:
- The needs of the child;
- Each parent’s financial means;
- The proportion of time the child spends with each parent.
Even where care is shared, one parent may still be required to contribute financially if there is a disparity in income.
Relocation and Shared Custody
Shared custody arrangements require a high level of cooperation. Where one parent seeks to relocate with the child, consent from the other parent or permission from the court is required if both parents hold guardianship rights.
Courts assess relocation disputes with careful consideration of the impact on the shared care arrangement and the child’s stability.
Best Interests of the Child
The principle of the best interests of the child remains paramount in all shared custody matters. Courts do not presume that shared custody is automatically beneficial. Instead, each case is assessed on its own merits, with the child’s welfare as the decisive factor.
Conclusion
Unmarried parents in South Africa may legally share custody of their child, provided both parents hold parental responsibilities and rights and the arrangement serves the child’s best interests. Shared custody requires cooperation, communication, and a commitment to prioritising the child’s needs above parental conflict.
Where agreement cannot be reached, the law provides structured mechanisms through mediation and the courts to ensure that care arrangements remain fair, lawful, and child focused.