Father loses custody bid over mother’s mental health history

The Limpopo High Court in Polokwane has dismissed a father’s attempt to gain primary care of his biological son and stepson, ruling that the mother’s history of mental health difficulties was not enough to establish that the children were unsafe in her care.

The father had approached the court seeking an interim arrangement that would place both boys with him while his divorce from their mother was being finalised.

His application relied partly on a clinical psychologist’s recommendation that the children live with him. However, Judge Kganyago found that there was insufficient evidence to justify removing the couple’s biological son from his mother, who had cared for him for about 14 months after the father left their shared home.

The court also found that the father could not use the application to change the existing care arrangements for his stepson, as a previous court order had already awarded primary care and residence to the boy’s mother.

In a judgment circulated electronically on 6 October 2026, the court emphasised that children’s best interests must come before disputes between parents and that a history of mental health difficulties does not automatically make someone an unsuitable caregiver.

Father raises concerns about mother’s mental health

The couple married on 29 June 2024, out of community of property without the accrual system. The woman already had a son from a previous marriage, whom the man said he had accepted and helped raise. The couple later had a child together.

In his court papers, the father alleged that his wife had emotionally and physically abused him during their marriage. He claimed she had shouted at him and slapped or punched him on several occasions, sometimes when she was allegedly under the influence of alcohol.

He also raised concerns about the children’s welfare when their mother was allegedly angry or intoxicated.

The father further claimed that he discovered she had previously been admitted to a psychiatric hospital and diagnosed with borderline personality disorder (BPD). He alleged that a doctor had advised her against having children.

The woman disputed aspects of his account, including the number of times she had received psychiatric treatment.

The marriage eventually broke down, with the woman instituting divorce proceedings in May 2025. The man also sought a divorce.

After the separation, the mother continued caring for both boys, while the father maintained contact with his biological son.

Experts disagreed over where the children should live

The couple jointly appointed clinical psychologist Zelda Buitendag to assess the family and recommend suitable care arrangements.

Buitendag found no indication of serious clinical psychopathology in the father that warranted a clinical diagnosis.

Her assessment of the mother identified anxiety-related symptoms, a history of suicidal ideation and previous psychiatric treatment. The psychologist said some of the characteristics observed could indicate borderline personality disorder, anxiety and mood disorders, including depression.

Based on her assessment, Buitendag recommended that the father receive primary care and residence of the children, with contact arrangements for the mother.

However, the family advocate and family counsellor reached a different conclusion regarding the couple’s biological son.

Their assessment found no allegations that either parent had abused or mistreated the child. Both were described as caring and loving parents who had responded positively to his needs, including his emotional well-being.

They recommended that the parents share primary care and residence, with the child alternating between their homes weekly and having reasonable telephone and video contact with the parent he was not staying with.

The father was prepared to accept the family advocate’s recommendations, but the parents could not reach a settlement.

The mother opposed the application, arguing that their son had remained in her care since June 2025 without suffering harm and had adjusted well to the arrangement.

She also told the court that a psychiatrist she consulted in June 2026 considered it unlikely that she currently met the diagnostic criteria for borderline personality disorder. According to her account, the earlier diagnosis needed to be understood in the context of an acute psychiatric presentation in 2019.

She maintained that her previous mental health difficulties did not make her a danger to her children.

Judge questions reliance on an earlier diagnosis

Judge Kganyago stressed that the children’s best interests had to take precedence over the conflict between their parents.

The court acknowledged that existing care arrangements should not be changed without good reason, although maintaining the status quo could not come at the expense of a child’s welfare.

The judge also considered concerns raised in the psychologist’s report about the father. Buitendag noted that his alcohol use had caused problems in the past and that he might not fully acknowledge its impact on his marriage and other aspects of his life.

The report also suggested that he might be experiencing stress, anger, guilt and feelings of being overwhelmed. However, the psychologist did not explain how these findings would affect the child if the father were granted primary care and residence.

The judge noted that both parents had faced personal difficulties. The father had dealt with alcohol-related problems, while the mother had a history of mental health challenges.

The court said these circumstances needed to be assessed in relation to the child’s actual welfare rather than treated as automatic reasons to exclude either parent from caring for him.

The judge also questioned whether the clinical psychologist could conclude that the mother was suffering from a mental illness without a comprehensive assessment report from a psychiatric expert.

Because the psychologist’s recommendations differed significantly from those of the family advocate and family counsellor, the judge said the experts would need to testify and explain the basis for their conclusions before the court could determine which assessment to prefer.

Court finds no evidence that son was at risk

The judge found that the father’s application concerning the couple’s biological son relied largely on concerns about the mother’s emotional stability and her earlier mental health history.

That history dated back to 2019, before the couple married and before their son was born.

The court found no comprehensive psychiatric assessment establishing the mother’s current condition and demonstrating that it placed the child at risk.

It also considered that the boy had remained in his mother’s care for approximately 14 months after the father moved out and appeared to have adjusted well.

The judgment stated that there was nothing in the father’s court papers indicating that the mother posed a danger to their son.

In those circumstances, the judge was reluctant to disrupt the existing arrangement while the divorce proceedings remained unresolved.

The application for interim primary care and residence of the couple’s biological son was dismissed.

Father’s application for stepson also fails

The father also wanted primary care and residence of the mother’s older son, whom he had helped raise during their relationship.

However, the judge found that he was neither the boy’s biological father nor his adoptive father.

A court order issued during the mother’s previous divorce had already awarded her primary care and residence of the older child. That order had not been changed or set aside.

The father had also not sought primary care and residence of his stepson in the main divorce proceedings between himself and the mother.

Although sections 23 and 24 of the Children’s Act allow certain interested parties to approach the High Court regarding a child’s care, the judge found that the father had not brought his application under those provisions.

The court held that it could not grant relief that had not been properly sought in the proceedings before it. It also found no exceptional circumstances justifying reconsideration of the existing order.

The application was dismissed, with the father ordered to pay the costs on a party-and-party scale.

The ruling highlights the importance of evidence about a child’s actual circumstances when courts consider custody disputes. A parent’s medical history, on its own, does not establish that a child is at risk or that an existing care arrangement should be changed.

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Source: IOL