In every matter concerning a child, the child's best interests are of paramount importance. This principle, enshrined in Section 28(2) of the Constitution of the Republic of South Africa, is the cornerstone of child law and the primary standard applied by courts in disputes over care, contact, and guardianship.

From Custody to Care and Contact

The Children's Act 38 of 2005 replaced the traditional concepts of "custody" and "access" with the concepts of "care" and "contact." This was not merely a change in terminology. The Act reconceptualised the parent-child relationship in terms of parental responsibilities and rights, emphasising that both parents have responsibilities toward the child not ownership over the child.

"Care" refers to the right to have the child live with the parent and to make day-to-day decisions about the child's upbringing. "Contact" refers to the right to maintain a personal relationship with the child, including communication and visits.

The Section 7 Factors

Section 7 of the Children's Act sets out a comprehensive list of factors that the court must consider when determining the best interests of the child. These include the nature of the personal relationship between the child and each parent, the attitude of each parent toward the child and toward the exercise of parental responsibilities, the capacity of each parent to provide for the child's emotional, intellectual, and social needs, the likely effect on the child of any change in circumstances, the practical difficulty and expense of the child having contact with a parent, and any family violence or its effects on the child.

The list is not exhaustive, and the weight given to each factor depends on the circumstances of the particular case.

The Presumption of Shared Parental Responsibility

The Children's Act does not create a presumption in favour of either parent. Both parents who are married to each other are automatic holders of full parental responsibilities and rights. For unmarried fathers, parental responsibilities and rights may be acquired by agreement or by court order, subject to the conditions set out in Section 21 of the Act.

While the Act does not mandate shared or equal care, courts increasingly recognise the value of both parents being actively involved in the child's life. The court's inquiry is focused on the child not on the parents' competing claims.

The Role of the Family Advocate

In contested care and contact disputes, the court may request a report from the Family Advocate. The Family Advocate is an independent officer appointed under the Mediation in Certain Divorce Matters Act 24 of 1987. The Family Advocate investigates the circumstances of the family, interviews both parents and the child (where appropriate), and provides a recommendation to the court.

While the Family Advocate's report is not binding on the court, it carries significant weight. Courts rarely depart from the Family Advocate's recommendation without good reason.

Parenting Plans

The Children's Act encourages parents to reach agreement on care and contact arrangements through a parenting plan, which can be made an order of court. A parenting plan sets out the practical arrangements for the child's daily care, schooling, medical decisions, and holiday schedules. It also addresses how parental decisions will be made and how disputes will be resolved.

Where parents cannot agree, the matter proceeds to court, and the court makes a determination based on the best interests standard.

Conclusion

The best interests of the child standard is flexible by design. It requires an individualised inquiry, focused on the specific needs of the particular child in the particular circumstances. For parents involved in care and contact disputes, the most important step they can take beyond instructing a competent attorney is to demonstrate, through their actions, that their primary concern is the wellbeing of their child.