Parental Plan / Parenting Plan
Parental Plan / Parenting Plan
Written by Advocate Muhammad Abduroaf LL.B LL.M
(Advocate of the High Court of South Africa)
Section 33 of the Children’s Act 38 of 2005 makes provision for Parenting Plans. Parenting Plans are now often being used in the High Court in Custody or Contact disputes although the term “Parenting Plan” may not be used. It should be noted that section 33 of the Children’s Act has not yet been promulgation or given effect to. However, for the readers benefit, I shall deal with it herein. I however strongly suggest that parents of children born out of wedlock enter into a Parenting Plan and have it made an Order of Court.
The Children’s Act 38 of 2005 does not provide a definition of a parenting plan. However section 33 of the Children's Act 38 of 2005 states the following regarding the contents of the Parenting Plan:
Contents of parenting plans
(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.
(2) 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.
(3) A parenting plan may determine any matter in connection with parental responsibilities and rights, including-
(a) where and with whom the child is to live;
(b) the maintenance of the child;
(c) contact between the child and-
(i) any of the parties; and
(ii) any other person; and
(d) the schooling and religious upbringing of the child.
(4) A parenting plan must comply with the best interests of the child standard as set out in section 7.
(5) In preparing a parenting plan as contemplated in subsection (2) the parties must seek-
(a) the assistance of a family advocate, social worker or psychologist; or
(b) mediation through a social worker or other suitably qualified person.
Section 34 of the Children’s Act deals with the formalities of a Parenting Plan. It states the following :
Formalities
(1) A parenting plan-
(a) must be in writing and signed by the parties to the agreement; and
(b) subject to subsection (2), may be registered with a family advocate or made an order of court.
(2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must-
(a) be in the prescribed format and contain the prescribed particulars; and
(b) be accompanied by a copy of the plan.
(3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must-
(a) be in the prescribed format and contain the prescribed particulars; and
(b) be accompanied by-
(i) a copy of the plan; and
(ii) a statement by-
(aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or
(bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person.
(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
(5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-
(a) by the co-holders of parental responsibilities and rights who are parties to the plan;
(b) by the child, acting with leave of the court; or
(c) in the child's interest, by any other person acting with leave of the court.
(6) Section 29 applies to an application in terms of subsection (2).
If you are looking for a practitioner to draft a parenting plan for you, you may email info@ourlawyer.co.za
Kind regards,
Advocate Muhammad Abduroaf (Cape Town | Western Cape)
LL.B & LL.M (Master of Laws) Constitutional Litigation
Advocate of the High Court of South Africa
Advocate of the High Court of South Africa