Parenting Plans: What is it and when must I have one?

Terms or concepts that has been changed by the Children’s Act of 2010:

Before the new Children’s Act 38 of 2005 came out in April 2010, the parents going through a divorce mostly decided who would have custody of a child, and what access the other party would have.  The Act has not only changed the terminology – “custody” is now “care” and “access” is now “contact” – but has also introduced the concept of ‘parenting responsibilities and rights.  There is now an obligation on the parents to care for the children and the on the one hand, and right to maintain contact with the children, on the other hand.

What is a parenting plan and when must one have one?

The Childrens Act 38 of 2005 does not give a description of a parenting plan, although it does state what should be included in the parenting plan.   A parenting plan is an agreement between the parents, as co-holders of parental responsibilities and rights, which describes in detail their respective responsibilities, and their rights, in respect of the child’s care, contact, guardianship and maintenance.

When should one consider a parenting plan?

There are two instances when a parenting plan should be drafted, namely

  1. a) when one is going through a divorce; and
  2. b) when the parties are not married but want an agreement in writing to regulate the rights and responsibilities of each parent (or even grandparents and family)

When is it compulsory to have a parenting plan?

It is compulsory to have a parenting plan at the time of divorce, but it is not compulsory otherwise.  It is, however, advisable to have one drafted and recorded where there are some disputes between parents, even if they have never been married.

What must a parenting plan include?

The contents of a parenting plan is not prescribed, but the Children’s Act (Sect. 33(3)) does give a list of what should be regulated, being the following:

  • a) where and with whom the child is to live;
  • b) the maintenance of the child;
  • c) contact between the child and any other person or parties
  • d) the schooling and religious upbringing of the child

Does the child have any say in the matter?

Yes, the child does have a say in the matter, but of course this depends on the age of the child and the maturity of the child.

Is a parenting plan binding upon the other party?

Once the parenting plan is agreed upon and signed by both parties, it must be registered with the Office of the Family Advocate or made an order of court before it can be legally binding upon the parties.

For more information on Parenting Plans please feel free to contact our attorneys Kim Armfield & Associates on 021 949 1758 or e-mail contact@legalwc.co.za

Article written by Kim Armfield : Attorney at Kim Armfield & Associates

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