The Limpopo High Court in Polokwane has dismissed a father’s application to take his biological son and stepson into his primary care, ruling that the mother’s history of mental health difficulties did not establish that the children were at risk in her care.
The man approached the court seeking primary care and residence of both boys pending the finalisation of his divorce, relying on a clinical psychologist’s assessment that recommended 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 been his primary caregiver for about 14 months after the father moved out of their shared home.
The court also ruled that the man could not seek primary care and residence of his stepson through the application because an existing court order had already awarded the boy’s mother primary care and residence, and the order had not been varied or set aside.
In a judgment electronically circulated on October 6, 2026, the court emphasised that children’s best interests must take precedence over disputes between parents and that a parent’s past difficulties do not automatically make them unsuitable to care for a child.
Father raises concerns about mother’s mental health
The couple married on June 29, 2024, out of community of property without the accrual system.
At the time of the marriage, the woman had a son from a previous marriage. The man said he had accepted the boy as his own and helped raise him. The couple later had a son together.
In his court papers, the father alleged that his wife had emotionally and physically abused him on several occasions, including shouting at him and slapping or punching him, sometimes when she was allegedly under the influence of alcohol.
He expressed concern about the children’s safety and well-being when their mother was allegedly enraged or intoxicated.
The man further alleged that he discovered his wife had previously been admitted to a psychiatric hospital and diagnosed with borderline personality disorder (BPD).
According to his account, a doctor had advised her against having children. The woman disputed aspects of his account, including the number of times she had been admitted to a psychiatric facility.
The marriage subsequently broke down, with the woman instituting divorce proceedings in May 2025. The man also sought a divorce.
After the couple separated, the mother continued caring for both children, while the father maintained contact with his biological son.
The father eventually approached the court seeking an order that both boys be placed in his primary care, with the mother retaining reasonable contact and visitation rights.
Conflicting assessments over children’s care
The couple jointly appointed clinical psychologist Zelda Buitendag to assess them and recommend arrangements for the children’s care and residence.
Buitendag found no indication of serious clinical psychopathology in the father’s psychological functioning that warranted a clinical diagnosis.
Her assessment of the mother identified anxiety-related symptoms, a history of suicidal ideation and a history of psychiatric treatment. She said the symptoms and characteristics displayed by the woman could indicate borderline personality disorder, anxiety and mood disorders, including depression.
The psychologist recommended that primary care and residence of the children be awarded to the father, with contact and visitation arrangements for the mother.
The father relied on this recommendation to argue that the children would be better off living with him.
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 subjected the child to abuse or ill-treatment. They described both parents as caring and loving and said they had responded positively to the child’s needs, including his emotional needs, before and after their separation.
They recommended that both parents retain full parental responsibilities and rights, with shared primary care and residence.
The proposed arrangement would see the child alternate between the parents’ homes on a weekly basis, with reasonable telephone and video contact when he was staying with the other parent.
The father was prepared to accept the family advocate’s recommendations, but the parties could not reach agreement on a settlement.
The mother opposed the application, arguing that the child had remained in her care since June 2025 without suffering any harm and had adjusted well to the existing arrangements.
She also told the court that she had consulted a psychiatrist in June 2026 who considered it unlikely that she currently met the diagnostic criteria for borderline personality disorder.
The psychiatrist said the earlier diagnosis needed to be interpreted in the context of her acute psychiatric presentation in 2019.
The mother maintained that she was capable of caring for the children and that her previous mental health difficulties did not make her a danger to them.
Judge questions reliance on historical diagnosis
In considering the application, Judge Kganyago stressed that the best interests of the children had to take precedence over the conflict between their parents.
The judge noted that courts were generally reluctant to disturb existing arrangements for children, although preserving the status quo could not override the children’s best interests.
The judgment referred to established legal principles that courts should not seek a perfect parent, but rather the least detrimental available alternative to safeguard a child’s growth and development.
The court also considered findings in the psychologist’s report concerning 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 areas of his life.
The report further indicated that he might be experiencing stress, anger, guilt and feelings of being overwhelmed by his circumstances.
However, the psychologist had not explained what impact these findings would have on the child if primary care and residence were awarded to the father.
The judge observed that both parents had experienced difficulties, with the father having had to overcome alcohol-related problems and the mother having dealt with mental health difficulties.
The court said these circumstances had to be considered in the context of the child’s actual welfare rather than treated as automatic grounds for excluding either parent from primary care.
The judge also questioned whether the clinical psychologist could determine that the mother was suffering from a mental illness without a proper assessment report from a psychiatric expert.
The psychologist’s recommendations differed materially 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.
No evidence that son was at risk
The court found that the father’s application concerning the couple’s biological son relied largely on the clinical psychologist’s concerns about the mother’s emotional stability.
However, the mental health history on which the father relied dated back to 2019, before the couple married and before their son was born.
There was no comprehensive assessment report establishing the mother’s current psychiatric condition and demonstrating how it placed the child at risk.
The judge noted that the boy had remained in his mother’s care for approximately 14 months after the father moved out of their shared home.
“There is nothing in the applicant’s papers that indicate that the respondent is a danger to second minor child,” the judgment stated.
The court also observed that the child appeared to have adjusted well to living with his mother.
In the circumstances, Judge Kganyago was reluctant to disrupt the existing care arrangements while the divorce proceedings remained pending.
The application for interim primary care and residence of the couple’s biological son was therefore dismissed.
Court rejects bid for stepson
The father’s application also sought primary care and residence of the mother’s older son from her previous marriage, whom he had helped raise.
However, the mother challenged his legal standing to seek that relief.
The judge noted that the man was neither the boy’s biological father nor his adoptive father.
A court order issued during the mother’s previous divorce had awarded her primary care and residence of the older child. That order remained valid and had not been varied or set aside.
The father had also not sought primary care and residence of the stepson in the main divorce action between himself and the mother.
Although sections 23 and 24 of the Children’s Act allow qualifying interested parties to approach the High Court concerning 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 that would justify reconsidering the existing order concerning the older boy.
The court upheld the mother’s objection regarding the stepson and dismissed the father’s application, ordering him to pay the costs on a party-and-party scale.
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