Guardianship of a child has nothing to do with whom or where a child resides, as some may think. Guardianship relates only to assisting the child in legal, contractual and administrative matters, including safeguarding their property, as well as giving or refusing consent required by law in respect of a child.

Custody is the common law concept of day-to-day control and care of the child. Since the advent of the Children’s Act 38 of 2005 (“the Act”) it is no longer used as a concept on its own, as it can loosely be construed to mean the same as “care”, which is one of the parental rights and responsibilities assigned to a married or unmarried parent.

Care is a wide-ranging concept as defined in the Act, which includes most importantly where the child lives, but also includes safeguarding and promoting the well-being and interests of the child.

In KZN this concept has been extended even further to designating the “primary residence” of the child – which is simply refers to where the child resides.

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