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What are the different types of custody?

Sole Custody

Sole custody generally refers to having exclusive “physical “and “legal” custody rights with regards to the child. This means that the parent granted sole custody shall exclusively be responsible for decisions regarding the upbringing and care of the child.

Our courts are often reluctant to grant sole custody awards in favour of one parent as it is in the best interests of a child to have both parents present and involved in his/ her growth and upbringing.

Sole Custody is usually awarded in cases where one parent is abusive towards a child or of one parent is an unfit parent. Such a parent is still however entitled to access and visitation to the child and in most circumstances such visits and access would be supervised.

Joint Custody

Joint custody encompasses both “physical custody” and “legal custody”.

“Physical Custody” refers to the parent’s right to have the child to live with them. With the application of joint “physical custody”, the child spends equal periods of time with each parent. The child will for example live with one parent for one week and with the other parent the following week. The advantage of joint “physical custody” is that one parent does not assume the role of the absent parent and the child is able to experience the physical presence of one parent just as much as the other.

Joint physical custody however, may not necessarily be in the best interests of the child as this implies that the child will have two permanent homes which will inevitably lead to a considerable amount of stress and disruption in a child’s life. Whilst the parents may be in a position to cope with such stress and disruption, it must again be stressed that the best interests of the child should reign supreme. Joint “physical custody” will not work with parents living in substantially apart as this would not make sense practically with regards to schooling, etc.

“Legal custody” refers to the parents’ right to make decisions about the upbringing of the child which may include the language medium the child should adopt, the religion of the child, the schooling of the child. For a healthy development in a child, routine is important and it is indeed difficult for a child to cope with the stresses associated with moving from parent to parent. Most often our courts are of the opinion that both parents should be granted joint “legal custody” of the child, thereby granting both parents equal rights in so far as making decisions revolving around the child’s upbringing and general welfare. “Physical custody” is usually awarded to one parent, in line with the importance of assisting the child in maintaining a routine with minimum disruption. Both mother and father hold joint “legal custody”, whilst most often the mother is awarded primary “physical custody”.

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