It is important to understand that a Divorce Settlement is not a Parenting Plan. We find daily that most disagreements between parents are directly related to grey areas or impractical arrangements regarding children or joint decision making. We can assist you with the creation of a new Plan or the maintenance of an existing plan.
Purpose of a parenting plan
- to, as far as possible, express the underlying principle of the Act, which is to ensure that the best interests of minor children are secured and to make provision for meeting their needs;
- to stipulate clearly and protect each parent’s responsibilities and rights with regard to the minor child(ren);
- to ensure the continued involvement of both parents or other person with the minor child(ren) after the parents’ divorce or after the separation of unmarried parents.
These aims are reached by both parents following a mediation process with a qualified mediator (in terms of the Act) who facilitates the process and draws up the parenting plan. This person may be a mediator, family advocate, psychologist, social worker or other suitably qualified person.
The Children’s Act, No 38 of 2005
- In July 2007, sections of the Children’s Act came into effect, and certain articles in the Act, such as those regarding the drawing up of a parenting plan, were promulgated on 1 April 2010.
- In addition to the protection provided under the Bill of Human Rights, as described in Chapter 2 of the Constitution of the Republic of South Africa, 1996, the best interests of the child are also paramount under the Children’s Act.
- Both parents, after their divorce or the separation of unmarried parents, remain the holders of full parental responsibilities and rights with regard to their minor child(ren) (under the age of 18 years). (Certain criteria are stipulated in the Children’s Act in terms of which an unmarried, biological father qualifies as holder of parental responsibilities and rights with regard to his minor child(ren). The Family Advocate’s Office may issue a certificate confirming the biological father’s responsibilities and rights. See paragraph 3.)
- The Children’s Act stipulates that “if the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child”.
- The parents may also, in the absence of a dispute, voluntarily decide to have a parenting plan drawn up in which both parents’ parental responsibilities and rights as well as the exercising of these responsibilities and rights are prescribed. With such a plan, possible future problems could be identified, discussed and resolved timeously.
- In the event of divorce, the parenting plan could be attached as an addendum to the settlement agreement between the parties. The plan would first be registered with the Office of the Family Advocate, after which it would be made an order of court together with the settlement agreement. If the court has already granted a divorce, a parenting plan could still be compiled and the court requested to attach the plan as an addendum to the existing settlement agreement between the parties thus making it an order of court.
- A parenting plan could still be compiled, registered with the Family Advocate’s Office and made an order of court even if the parents of the child are not married and a settlement agreement between the two parties is not applicable or necessary. (Ideally, both these steps should be taken.)
Additional information for unmarried parents
- If parents who are not legally married decide to separate, and a settlement agreement is not applicable, they can still decide to have a parenting plan drawn up. In this plan both parents can feature as guardians as well as holders of full responsibilities and rights with regard to their minor child(ren). The responsibilities and rights and the exercising thereof are also described.
- Where a parenting plan does not form part of a divorce process, it is registered with the Family Advocate’s Office and/or made an order of court. It is strongly advised that both steps should be taken. The same process is followed with regard to the drawing up and registration of the parenting plan as described in paragraph 2.1.
- If an unmarried parent experiences difficulty with the description or exercising of his or her responsibilities and/or rights, and the other parent is requested to participate in the mediation in order to draw up a parenting plan, but refuses, such parent can approach the court. The court can then order both parents to participate in a mediation process so that a parenting plan can be drawn up. Such a parent should first contact the Family Advocate’s Office* for details regarding the correct procedure. It is, however, always in the best interests of the child(ren), as well as of the parents themselves, to voluntarily have a parenting plan compiled rather than for one of the parents to have no other option but to follow the court route.
Credit: Offices of the Family Advocate