My child’s other parent is toxic: how do I legally get sole custody?

“My proposal would always be to approach the high court as they deal with cases quite quickly.” (Thamrongpat Theerathammakorn  EyeEm/Getty Images)
“My proposal would always be to approach the high court as they deal with cases quite quickly.” (Thamrongpat Theerathammakorn EyeEm/Getty Images)

Raising a child is hard work.

You feel the need to protect them from all the bad things in the world, but what happens when one of those bad things is their other parent?

We spoke to Stacey-Lee Machelm, an advocate at Marais Muller Hendricks attorneys, for information on termination or suspension of a parent or guardian’s rights and responsibilities towards a minor child.

What are a parent’s rights and responsibilities?

“The Children’s Act of 2005… gives us an idea the of the parental rights and responsibilities that a parent may have towards a child; mainly to care for the child, to maintain contact, to act as the child’s guardian and to contribute towards the maintenance of the child,” she says.

How do I terminate my child’s other parent’s rights towards them? 

Malchem says there must be an application to either the high court, a court dealing with the divorce currently, or alternatively a children’s court.

“My proposal would always be to approach the high court as they deal with cases quite quickly,” she suggests.

How do I know if I should pursue this course of action?

If your child says “I don’t want to go to mommy’s house”, but they cannot express why it might be best to involve a child psychologist or social worker.

It could be trauma from their parent’s break up, or something much worse, but you need to make sure what that is for your child’s sake.

Who can apply for this termination?

A co-holder of the child’s rights and responsibilities (their other parent or legal guardian), someone who has a vested interest in the child, the child themselves (acting with leave of the court), or an external party such as a child advocate or social worker.

What will the court consider? 

The court must take into account the best interest of the child says Malchem.

“This has a very wide scope and not limited to a certain list. The court will look at the relationship between the child and the person whose parental rights and responsibilities are being challenged. The court will also look at the commitment the person has shown towards the child, as well as any other factors that in the opinion of the court should be taken into consideration.”

This includes whether physical, psychological or mental harm has been caused to the child by the parent or by a third party while in that parent’s care.

If there is suspicion or evidence of sexual abuse, this will, of course, also be taken into consideration and criminal charges can be sought while also seeking for the termination of parental rights and responsibilities.

What will help my case?

Malchem suggests adding everything you possibly can to the application.

Affidavits from an external party, notes from a child psychologist, quotes or recordings from conversations with the child, drawings showing preference or fear of one parent, or pictures of bruises that were inflicted on the child.

The family advocate who has been assigned to your case will also give their findings and evidence after an investigation.

What if the other parent is the one being abused and not the child? 

“The court might say that it isn’t necessarily grounds for the termination of parental responsibilities and rights,” says Malchem.

“The court’s opinion, in essence, might be that the abuse shown towards one parent, might not necessarily be the same degree of abuse that’s shown towards the child.”

You could approach the children’s court, and state your fear that witnessing this abuse will have a lasting impact on the child.

A parenting plan would most likely be put into place, however, says Malchem.

Should the other parent still pay child support?


The termination of their rights and responsibilities means they no longer have a right to contact with the child and no longer have an obligation to help maintain the child.

They no longer need to give consent if the child is taken overseas for any reason.

What about supervised visits? 

This is rare, but if the parent or guardian in question abused narcotics for instance, or had involuntarily spent time in a mental institution, the parent making the claim could ask for supervised visits where they will be around at all times or a third party of their choice, or it could even take place at a social worker’s office.

“It’s rare where a social worker will suggest supervised contact unless the relationship between that parent and the child has deteriorated to such an extent that there’s no bond whatsoever and they want to gradually phase in this bond,” says Malchem.

Do you have to have a registered parenting plan? 

Machelm suggests filing a parenting plan with the family advocate’s office after the parents separate, just in case.

This is always in the best interest of the child as long as nothing in it affects the child negatively.

Once it is registered and made an order of court, if there are any contraventions of that plan, the concerned parent may approach the court.

These plans often have clauses for when parents need to swap days or would like to see their child just because it’s their day off and would like to take their kid to see the latest animated movie, for instance.

“The parenting plan is there to provide structure for both parents to be able to uphold the best interest of the child,” says Malchem.

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