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Parenting Plans

- Featured article by LAWYERS-ONLINE.CO.ZA

The purpose and advantages of having a parenting plan drafted

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). The Family Advocate’s Office may issue a certificate confirming the biological father’s responsibilities and rights.

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 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.

The purpose of a parenting plan is threefold: 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 a particular parent 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 family advocate, psychologist, social worker or other suitably qualified person.

The legal prescriptions include that the parenting plan should be in writing and signed by both parties to the agreement as well as the mediator who drew up the agreement: may be registered with the Family Advocate or made an order of court; should be accompanied by a statement from a family advocate, social worker, psychologist or other suitably qualified person to the effect that the agreement was prepared after consultation with such person; and should contain a provision that the parents, as co - holders of parental responsibilities and rights, may revise the parenting plan at a future date.

Both parties have to agree in writing to the change(s), and, if the parenting plan was previously made an order of court, an application may be brought to co urt in order to make the amendment(s) to the agreement an order of court.

The Children’s Act stipulates that due consideration should be given to the views expressed by a minor child in matters concerning him or her, including major decisions with regard to the child, bearing in mind the child’s age, maturity and stage of development.

Taking these factors into consideration, the mediator will consider the child’s participation in the mediation process, as well as informing the child of relevant information contained in the parenting plan.

There are many advantages of a parenting plan, these will be discussed below: one of the most important indicators of the general welfare of a child after his or her parents’ divorce or separation is the level of conflict that may be present or may persist.

During the mediation process, both parents are given the opportunity to accustom themselves with the post - separation/divorce period while considering the best interests of their child(ren). This can significantly limit future conflict regarding the child(ren), and the accompanying negative emotions that such conflict evokes.

An objective third party with the necessary expertise regarding children’s developmental needs assists parents to explore co-parenting issues and to participate in compiling a parenting plan that provides for the child(ren)’s needs as well as a day to day schedule.

The mediation process creates an opportunity for parents to reaffirm their parenting and to redefine their future roles as co-parents but no longer as spouses or a couple.

A parenting plan gives structure to the ongoing involvement of both parents with the child(ren) and impresses on the child(ren) and others the commitment of both parents to the child(ren)’s welfare – despite the fact th at one of the parents may in future spend more time with the child(ren) on a daily basis.

A flexible agreement that makes provision for mutually agreed revisions offers a concrete record of decisions taken jointly by the parents in the best interests of the minor child(ren) and facilitates collaborative co - parenting.

A parenting plan precludes one parent from making changes to the plan unilaterally. It also stipulates what procedures should be followed to deal with future differences without necessarily approaching the court.

When the parents deviate from the parenting plan and a dispute arises as a result of the deviation, the parenting plan agreement will form the basis for action until such time as the dispute is resolved.

The mediation process, while not psycho - therapy, may provide therapeutic benefits to all parties to the divorce/ separation.

Date: 10th December 2013

Parenting Plans - Legal Information South Africa