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Parenting plans and why they are important

Parenting plans and why they are important

Arisha Rajaram

In certain instances, parents or co-holders of parental rights may experience difficulties in exercising their responsibilities and rights over their children. When this happens, parents would need to agree on a parenting plan to regulate the exercise of their responsibilities and rights as a prerequisite before approaching the court.

What is a parenting plan?

The Children’s Act 38 of 2005 (Children’s Act) offers parenting plans as a method to assist parents with how to exercise their parental responsibilities and rights after separation or divorce. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Children’s Act, and must include the following issues:

  • where and with whom the child is to live;
  • the maintenance of the child;
  • contact between the child and any other person; and
  • the schooling and religious upbringing of the child.

A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party, usually a family lawyer, acting as a mediator.

Drafting a parenting plan

Developing a parenting plan is an essential part of the divorce process. Even though they may be drafted at any time, before or after a separation or divorce, it is important to note that issues surrounding children should be resolved speedily, as the best interest of a child are of paramount importance. It is further important for children to have plenty of access to both parents. Where both parents have been actively involved in the child’s life before the divorce, a more equal division of parenting time can occur.

The Children’s Act requires that children should also be consulted in the drafting process, so that they have an opportunity to give their input on who they wish to live with, how much time they wish to spend with each parent and where they wish to spend special occasions. Any other factors which may be important to the child, may also be discussed with the child. However, the age of the child will determine the level of input allowed by the child.

Once the plan is finalised, it is signed by both parents. Parenting plans need to be continually reviewed, as children’s developmental needs change over time.

Courts as a first port of call

The Children’s Act discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those responsibilities and rights. It is therefore a prerequisite for parents or co-holders of parental rights to seek assistance or mediation before being allowed to approach the court.

The aim of mediation is focused on achieving a win-win situation. The point is to agree on the best interests of the child/children, in order to ensure that the child/ children are adequately cared for and supported.

After agreeing to a plan, parents can choose to lodge a signed parenting plan with the Office of the Family Advocate or have it made into an order of the court. Once a parenting plan is made an order of court, breach of such plan may lead to contempt of court. Depending on the family situation, sometimes a higher level of accountability is required and so lodging with the court is an absolute necessity. In most instances, the parenting plan may be drafted by an attorney and signed by both parents, who abide by the parenting plan.

Should the parenting plan be made an order of court, on application, the parties to the parenting plan may amend or terminate the said plan. If the parenting plan was registered at the Family Advocate, they must apply directly to the Office of the Family Advocate. Only the following persons may approach the court for an amendment or termination:

  • the co-holders of parental responsibilities and rights;
  • the child; or
  • a person acting in the child’s interests.

For more information on parenting plans, or to have a parenting plan drafted, contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za

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