Child Custody and religion in South Africa

Custody – the protective care or guardianship of someone… “A custodial parent is a parent who is given physical and/or legal custody of a child by court order. A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.”
 

A question SAPRA is often asked, relating to religion and child custody: “I am a Witch. Will my faith count against me in my child custody hearing?”

The first question that needs to be explored in answering this question is whether or not the practice of Witchcraft is protected as a religion under the Constitutional guarantee to religious freedom.

The short answer is, yes, Witchcraft is protected under the Constitutional guarantee to religious freedom for all South African citizens.

Section 15. of Chapter Two of the South African Constitution guarantees “Freedom of religion, belief and opinion”.

Section 15 reads…

“1. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
2. Religious observances may be conducted at state or state-aided institutions, provided that ­
a. those observances follow rules made by the appropriate public authorities;
b. they are conducted on an equitable basis; and
c. attendance at them is free and voluntary.”

Whilst the Bill of Rights does not actually mention Witchcraft, it actually mentions no religion. The implication is then intended to mean that no religion is excluded from this right.

A recent Issue Paper (Paper 139, Project 135) released by the South African Law Reform Commission on the review of the Witchcraft Suppression Act 53 of 1957, specifically noted that:

1. Witchcraft as a religion is protected by Section 15 of the Constitution.
2. Witches have the right to practice their religion.

By logical extension, this means that every other right which flows from the Bill of Rights equally applies to citizens who self-identify as Witches.

What does this mean in child custody cases involving Witches?

Although conflict of opinion may arise in child custody cases in which one parent (A) may cite the other parent’s (B) religion as a reason why A thinks B is an unsuitable guardian, the presiding officer hearing the case may not make a religiously prejudicial ruling based solely on the grounds that guardian B.’s religious affiliation makes her or him unsuitable to be a child’s guardian, simply because of that particular religious conviction.

“In terms of the Child Care Act, the best interest of the child is of paramount importance and is the determining factor in so far as establishing who the custodian parent should be.” Halse, Havemann & lloyd Attorneys

The presiding officer must and will carefully weigh a number of important factors, including the child’s own religious preference, if that child is old enough to articulate such. These include:

“The child’s age and sex.
The amount of contact the child has had with each parent.
The record of each party as a parent (any neglect or cruelty will obviously be important, as will the amount of love shown).
The child’s feeling of security and being wanted.
The child’s physical, moral, emotional and religious well-being.
The accommodation each can offer.
The educational facilities offered.” Legal City

For more information on Child Custody in South Africa, review the informative links provided below.

Resources:
 
SAPRA – Your Rights