Parenting Plans and the Law – Draft and Register you Plan
Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.
What is a parenting plan?
The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child.
Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.
Who should agree on a parenting plan?
Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one.
Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.
Optional situation – section 33(1)
Section 33(1) of the Act states the following:
| “(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.” |
This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.
Mandatory situation – section 33(2)
The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:
| “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.” |
Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached.
As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.
What must the parenting plan deal with according to the Act?
The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:
| “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.”
|
Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:
| (1) Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration.
(2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative. |
Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied.
Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:
| “(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 a 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.”
|
Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:
| “A parenting plan must comply with the best interests of the child standard as set out in section 7”. |
Now we look at the Act and Regulations that come into play in preparing a parenting plan.
Optional parenting Plan – sec 33(1)
With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8.
With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.
Mandatory parenting plan – section 33(2)
According to section 33 (5) of the Act:
| “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.” |
Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:
| (1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must-
(a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.
|
Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans.
The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:
| (1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act.
(2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.
|
It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate.
Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan.
Court proceedings for optional parenting plans
Interesting to note is section 34 (6) of the Act where it states:
| “Section 29 applies to an application in terms of subsection (2).” |
Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above.
Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child.
Section 29 (5) states the following:
| The court may for the purposes of the hearing order that –
a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance. |
Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests.
It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above.
Contempt of Court
The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court.
Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.
Sharing is Caring
This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.
Should you require any other legal services and advice, not related to family law, visit Private Legal.
Good Afternoon,
My Son will be a Father soon, he is not in a relationship with the Mother at this stage but has been providing financial support for scans etc . It has become quite a nightmare as now she has started with the : You will have NO access to the child and his name on the Birth Certificate will be UNKNOWN as she did prior with the Father of her First Child?. I do not feel this is fair?..
Good Evening
I have just received a parenting plan from the lawyers of my ex. I was not involved nor aware that this was in progress. Most confusing matter is that the child has been under my care since she was born. He had never co-parented but I have never refused him rights to visit my daughter. Now after 13 years of being a part-time father he is issuing me with a parenting plan that places me in a corner to commit on things I don’t even agree with.
Good day
There is no obligation on you to agree on the proposed parenting plan. If he is not not happy with your decision, then he would have to take it to court. The court would decide what is best for the child.
Good day. My ex and I have a parenting plan that was made an order of the court. In there, it states that all our son’s traveling documentation is to be kept by me. But he has refused to give me the passport for over 3 years now. Instead, he’s just gotten lawyers to asking to change that clause and other clauses in the plan. After I refused, a facilitator has been brought to mediate. However, I have just discovered that this facilitator has affiliation with my ex’s attorneys. Are facilitators not meant to be neutral? Can I ask for famac to replace this facilitator? Also, is there any help for parents who’s ex’s use the law to bulldoze their way through because they are financially able to? Please can I get some advice. I fear my ex intends using that passport to take our child. I know he needs my permission to leave the country with him, but I also know he is capable of just finding a way around it.
Good day
If the order states he must give you the documents, and he does not, he is committing a criminal offense. You may consider going to the police. If the order allows for a change in facilitator, then you may do so.
We have a signed parenting plan made an order of the cape town high court.
The father is not adhering to the terms of the order
Contact visits are not being met and I am not being informed that he will not make it.
When the the children are collected from aftercare or school I am not being informed.
Visitation Arrangements are being made with my 8year old via telephone and I am not advised. If my daughter remembers or recalls I would find out from her.
All the terms are set out specifically in the parenting plan regarding these matters. What you suggest my first approach is in this regard and when should i approach the court?
Good day
We suggest you have an attorney approach him with the non-compliance of the parenting plan/court order. These issues are quite complicated and there is no quick answer. If need be, the court must be approached.
Good day
Myself and my daughters mother has a written contract between us and all parties signed an agree to the rules and regulations and was stamp by the saps. My question is can I take this agreement (contract) to court to get it registered.
Good day
You may make an application to the Court to make the agreement an order of court. We advise you make use of an attorney for this.
Hi
My ex boyfriend (my daighter’s father) lives in PTA and I live in Cape Town.From January 2019 our daughter has been living with him but he is very difficult with calls and visitation to CT,we always have to fight before we can aggree about our daughter.He is even hiding his address from me so I do not know where in PTA he lives eversince he changed houses earlier this year.How can I initiate a Parenting plan with us being far from each other?
Good day, you may approach the office of a Family advocate and make the parenting plan an order of court.
I am relocating to PTA and currently in CT and have requested that my court order gets changed and only got a date for January but leaving end Nov. I will not be able to pick up my kids every second weekend and the court is not helping me until January. Is there a way I can request an interim agreement to relief myself from the court order until January due to pending court date?
Good day. A Rule 43 interim relief application provides that a spouse in divorce proceedings can approach the court for interim relief pertaining to the contact with or care of a minor child
Father does not want to sign parental plan.. Went to court and the cletk did not want to help me because the father sworn a oath that we settled it outside of court… Which was not the case… It was never settled.. But because he sworn an oath I can’t be helped
You may want to consider speaking to the Magistrate at Court dealing with those type of case, or the Court manager. It may also be a good idea to enlist the services of an attorney.
Good day,
Am I able to draw up a parenting plan on my own and have an advocate/high court sign it and send it to the father? How does the process work as he will not sign it or work with me to draw one up.
Where do I even start the process and how – who do I contact?
Thank you
Good day. We refer to your previous message. Make use of this link http://www.ourlawyer.co.za/advice/
Hi
If you have a parenting plan in place registered in high court where both parties agreed to be primary carers, However the one party is struggling with accommodation or living space , can one apply for for child maintenance for some sort of assistance for better accommodation for kids ?
Good day
Yes, the parent may apply for child maintenance.
Hi, how would we go about registering a parenting plan with the high court
When the plan was drawn up it was signed by the relavent parties and witnessed. The child has not been allowed any contact to-date. We applied to the family advocate for help but they weren’t able to help at all.
Have you any suggestions?
Good day
We advise that you make an application to Court to make the terms of the parenting plan and Order. Best is to make use of an attorney/advocate for that.
Good day. My husband and I came to an agreement and filled in a parenting plan that I got off your site for the DYI. The only thing that we forgot to put in, and I am not sure if you need it, is the ID numbers of the children. It is signed by both of use and witnessed. How do I register it now to make it legally binding for both of us before the divorce starts?
Good day
The ID numbers are not necessary. You can have it now registered at the Office of the Family Advocate or be made an order of the court. The latter is better in our view. It may be best to have a lawyer look at it and advise on the way forward.
Wonderful, how much would you charge me to look it over for me and could you register it in Johannesburg where I live, or do I need to find a lawyer here to do it for me?
How do you change or update an existing parenting plan. For example the father and child no longer live in the same province so the visitation rights no longer make sense.
Good day
If the parenting plan was made an order of the court, you would have to vary it. However, all parenting plans are different, and yours may have a provision dealing with the current situation. If not, we advise you see a lawyer to attend to the variation thereof.
Not according to Rule 63 of the Uniform Rules of court with respect to Authentication of Documentation…..I think you might be mistaken on that. Can you comment in context of Rule 63?
Good day
It may be best you discuss this issue with the attorneys dealing with this matter.
Hi
I don’t live in the country anymore, but my daughter and ex wife live in South Africa still. We just did a new Parenting Plan and I need to sign it in the country I am living in before a witness. What is an acceptable witness. I understand that it could any of the following three a) commissioner at SA embassy b) at the court here or c) an authorized commissioner in the country I am in…also no one seems to know what words should appear when the witness signs. Can you advise me?
Good day
In our view, a witness can be anyone older than 16. We don’t know of any legal requirement for witnesses for a parenting plan, except that he or she should be old enough, of sound mind, and actually witness the signature.
What happens if both parents can’t reach an agreement? And what happens when there never was a written agreement only a verbal one and the one parent wants to change it now as it is no longer in the best interest of the child?
If parents can’t come to an agreement then the court would make an order on their behalf. If one party keeps on changing that agreement then it would be best to approach the court.
Good Day
I Victoria am going through a parenting plan court process and would appreciate it highly if you can assist me with advice regarding to the do’s and do not are concern. i feel like I’m under a lot of pressure and help will be highly appreciated from your side .
Regards
Victoria
Good day
Have a look at the articles on Parenting Plans on http://www.ourlawyer.co.za .