Balancing Constitutional Protections and Parental Rights: Safeguarding Children’s Best Interests in Custody Disputes

Bulelani Thukuse ORCID iD & Paul S. Masumbe ORCID iD 

Issue: Vol.6 No.14 Article 57 pp. 4179 – 4187
DOI: https://doi.org/10.38159/ehass.202561457| Published online 30th December, 2025
© 2025 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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The purpose of this study was to critically examine the legal and practical frameworks governing child custody and abuse cases in South Africa. It aimed to assess how constitutional protections, the roles of Family Advocates, social workers, law enforcement, and international norms intersect in custody disputes, particularly where abuse allegations arise. The study sought to identify gaps and challenges in the current system and to provide insights for strengthening legal processes so that children’s rights are consistently safeguarded, while parents are supported to fulfil their responsibilities effectively and responsibly. Through a qualitative approach with an emphasis on desktop research, the study explored how South Africa’s laws and support systems can better protect children in custody disputes while helping parents meet their responsibilities effectively. The findings reveal that, although South African law firmly protects children’s rights in custody disputes, in practice these protections are often weakened by challenges such as false allegations, parental alienation, limited support for Family Advocates, and delays in the justice system, making it difficult to consistently uphold the best interests of the child. The study recommends that family courts should establish clearer legal standards and guidelines for balancing parental rights with the best interests of the child. This study will help create a legal framework that protects children’s rights while guiding parents to fulfill their responsibilities responsibly.

Keywords: Custody Disputes, Parental Rights, Children’s Best Interests, Constitutional Protections, Family Law, Child Welfare, Legal Frameworks.

Case Law

B v S 1995 (3) SA 571 (A).

DK v Office of the Family Advocate ZAGPPHC 2023/1129).

F v F 2006 (3) SA 42 (SCA).

JG v CG 2012 (3) SA 103 (GSJ).

S v M [2007] ZACC 18; 2008 (3) SA 232 (CC).

McCall v McCall 1994 (3) SA 201 (C).

S v M 2007 (2) SACR 539 (CC).

Van den Berg v Le Roux [2003] 3 All SA 599 (NC).

Legislation

Children’s Act 38 of 2005.

Constitution of the Republic of South Africa, 1996.

Mediation in Certain Divorce Matters Act 24 of 1987.

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Bulelani Thukuse (LLB) (LLM Candidate) School of Law, Faculty of Law, Humanities & Social Sciences, Walter Sisulu University, South Africa. He also serves as a reviewer for the South African Journal of Agricultural Extension (SAJAE). His research interests cut across International Criminal Law, Human Rights Law, and Labour Law, particularly issues relating to minimum wages as well as selected aspects of Private Law.

Professor Paul S. Masumbe (LLD) is Associate Professor and Head of School of Law, Walter Sisulu University. He is external examiner for masters and doctoral degrees in law at various universities, reviewer and editorial board member of local and internal journals. His research interests include International Criminal Law, Human Rights Law, Labour Law with emphasis on dismissal, and selected areas of Private Law.

Thukuse, Bulelani, and  Paul S. Masumbe. “ Balancing Constitutional Protections and Parental Rights: Safeguarding Children’s Best Interests in Custody Disputes.” E-Journal of Humanities, Arts and Social Sciences 6, no. 14 (2025): 4179 – 4187, https://doi.org/10.38159/ehass.202561457.

© 2025 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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