Parenting Plans
When parents separate, the relationship between the adults changes, but their responsibilities towards their children continue.
A parenting plan provides a practical framework for how parents will care for their children and exercise their parental responsibilities and rights after separation or divorce. It can deal with where children live, the time they spend with each parent, schooling, holidays, important decisions, maintenance and how the parents communicate about their children.
The purpose is not simply to divide time between two households.
A good parenting plan needs to work in the child’s actual life.
What Is a Parenting Plan?
Parenting plans are specifically provided for in sections 33 and 34 of the Children’s Act 38 of 2005. The Act allows co-holders of parental responsibilities and rights to agree on how those responsibilities and rights will be exercised.
Section 33 provides that a parenting plan may deal with any matter connected with parental responsibilities and rights. The Act specifically mentions:
- where and with whom the child will live
- maintenance of the child
- contact between the child and the parents or other people
- schooling
- religious upbringing.
In practice, a parenting plan can go considerably further than this.
It may deal with ordinary weekly arrangements, weekends, school holidays, birthdays, transport, extracurricular activities, medical matters, communication with children when they are in the other household, travel, significant new relationships and how future disagreements will be handled.
Not every family needs every possible clause.
The plan should fit the family rather than forcing the family into a standard template.
When Is a Parenting Plan Needed?
Parents do not have to wait until they are in serious conflict before agreeing on a parenting plan.
Section 33(1) allows co-holders of parental responsibilities and rights to agree on a plan voluntarily.
Where co-holders are experiencing difficulties in exercising those responsibilities and rights, section 33(2) says that before seeking the intervention of a court, they must first seek to agree on a parenting plan.
This does not mean that the parents must already agree about the issues.
Quite often the need for family mediation exists precisely because they do not.
One parent may favour a shared-care arrangement while the other believes that one primary home will provide greater stability. Parents may disagree about schools, holidays, routines, maintenance, travel, communication or major decisions.
The work is to get underneath those positions and understand what arrangement will function properly for the child and the family.
Parental Responsibilities and Rights
A parenting plan is closely connected to parental responsibilities and rights.
Section 18 of the Children’s Act identifies these as including responsibility and the right to care for the child, maintain contact with the child, act as guardian and contribute towards the child’s maintenance.
A parenting plan generally regulates how responsibilities and rights that already exist will be exercised.
This is important because it distinguishes a parenting plan from a Section 22 Parental Responsibilities and Rights Agreement.
In appropriate circumstances, a Section 22 agreement can provide for a person to acquire specified parental responsibilities and rights. The parenting plan then deals with the practical exercise of responsibilities and rights held by the parties.
I deal with this separately on my Section 22 Agreements page.
The Best Interests of the Child
A parenting plan must comply with the best interests of the child standard.
Section 33(4) expressly requires this, while section 7 of the Children’s Act sets out a range of factors that may be relevant when deciding what is in a child’s best interests.
These include the child’s relationships with parents and other important people, each parent’s ability to meet the child’s needs, the likely effect of changes in the child’s circumstances and the practicalities of maintaining meaningful relationships.
This is why I would be cautious about starting with a formula such as “50/50 parenting” and then trying to make the child fit it.
Equal time may work very well for some families. It may work poorly for others.
A three-year-old has different needs from a fifteen-year-old. Distance between homes matters. Schooling matters. Parents’ working arrangements matter. Existing relationships and routines matter.
The more useful question is:
What arrangement works best for this particular child?
Children Should Have a Voice
Children should not be placed in the position of having to choose between their parents.
That is very different from saying that their views should not be heard.
Section 10 of the Children’s Act recognises the right of a child who has sufficient age, maturity and development to participate appropriately in matters concerning them and requires their views to be given due consideration.
The Children’s Act Regulations also make provision for children’s views to be considered when parenting arrangements are developed.
Depending on age and maturity, a child may have important views about school, routines, travel between homes, friendships, extracurricular activities and what makes moving between households easier or more difficult.
Their views matter.
They should not, however, be given responsibility for resolving the adults’ disagreement.
Where Will the Child Live?
One of the practical questions in many parenting plans is the child’s living arrangement.
Some children may have a primary home with one parent and regular contact with the other. Other families may use a shared-care arrangement in which the child spends substantial time in both households.
There is no single arrangement that is correct for every family.
The child’s age, developmental stage, existing attachment relationships, distance between homes, schooling, parents’ working arrangements and the practical demands of everyday life all need to be considered.
It can also help to move away from language about “my time” and “your time”.
From the child’s perspective, the issue is not ownership of time. It is knowing where they will be, who will care for them and whether they can remain securely connected to the people who matter to them.
Contact and Everyday Parenting
A parenting plan should provide enough certainty without attempting to regulate every minute of family life.
It may cover weekday and weekend arrangements, school holidays, birthdays, Mother’s Day and Father’s Day, religious occasions and telephone or video contact.
The practical details matter too.
Who collects the child? Where does the handover happen? What happens if somebody is late? How are school items, medication or sports equipment moved between homes?
Small practical issues can become surprisingly large sources of conflict when they have never been discussed.
Important Decisions
Parents also need to consider how significant decisions about their children will be approached.
Section 31 of the Children’s Act requires a parent making certain major decisions to give due consideration to the child’s views and, where the decision is likely to have a significant effect on the other co-holder’s exercise of parental responsibilities and rights, to that person’s views as well.
Major decisions may involve areas such as education, health, living circumstances and other matters that can significantly affect the child’s wellbeing.
An important legal nuance is that the Act does not generally require joint consent for every parenting decision simply because two people are co-holders of parental responsibilities and rights. Courts have distinguished between giving due consideration to the other parent’s views and requiring their consent, except where legislation, an existing order or a particular guardianship requirement provides otherwise.
A parenting plan can nevertheless create clearer decision-making arrangements where parents agree that this will work better for their family.
Travel, Passports and Relocation
International travel and relocation deserve particular attention because guardianship requirements may apply.
A parenting plan can set out how parents will communicate about proposed travel, passports, itineraries and consent documents.
Relocation is more complicated.
A move that substantially affects the child’s home, school or relationship with the other parent is not simply an ordinary household decision. The child’s best interests and the effect on the other parent’s relationship with the child need careful consideration.
Where relocation is disputed, independent legal advice may be necessary.
Maintenance and Parenting
Parenting and maintenance are connected, but they are not the same issue.
A parenting plan may include child maintenance because section 33 expressly allows it.
In many families, however, the financial arrangements need more detail than is practical in the parenting plan itself.
Medical aid, school fees, extracurricular costs, extraordinary expenses, annual increases and tertiary education may all need separate consideration.
I deal with this more fully on my Maintenance Plans page.
The important thing is that the parenting and financial arrangements make sense together.
New Partners and Changing Families
Separation does not freeze a family in time.
New relationships may develop. Parents may remarry. Step-parents and step-siblings may become part of children’s lives.
These changes can be emotionally complicated for both children and adults.
A parenting plan should not become a way of unnecessarily controlling the other parent’s private life. It can, however, provide a framework for discussing how significant changes will be introduced to children and how children will be protected from adult conflict.
Children should not be expected to report on the other household, carry messages between parents or manage adults’ feelings about new relationships.
The couple relationship may have ended.
The co-parenting relationship continues.
Communication Between Parents
Many parenting arrangements become difficult not because the schedule itself is impossible, but because communication around it breaks down.
A parenting plan can therefore deal with how parents communicate.
This may include the method of communication, what information should be shared, reasonable response times, how emergencies are handled and how proposed changes to arrangements are discussed.
Children should not routinely become the communication channel between adults.
They should not have to negotiate changes to the schedule, communicate financial requests or feel responsible for keeping the peace between their parents.
Where direct communication is difficult, greater structure can help.
Developing the Parenting Plan Through Mediation
Where section 33(2) applies because co-holders are experiencing difficulties, the Children’s Act requires them, in preparing the plan, to seek assistance from a Family Advocate, social worker or psychologist, or mediation through a social worker or another suitably qualified person.
The Office of the Family Advocate also assists parents with disputes concerning parental responsibilities and rights and parenting plans, and its services are provided to the public free of charge.
In my mediation work, the process involves identifying what the children and parents actually need, where the points of disagreement are and what practical arrangements could work.
The purpose is not to decide which parent has won.
It is to build something that the parents can live with and, more importantly, that works for the children.
Registering a Parenting Plan or Making It an Order of Court
Section 34 requires a parenting plan to be in writing and signed by the parties.
A parenting plan may be registered with the Family Advocate or made an order of court.
The regulations prescribe Form 8 for an application to register a parenting plan or have it made an order of court.
Whether registration or a court order is appropriate will depend on the circumstances, and parties may wish to obtain legal advice about the formalisation of their particular agreement.
Parenting Plans Need to Change as Children Grow
A parenting arrangement that works for a young child may not work several years later.
Schools change. Teenagers become more independent. Parents move or change jobs. Family relationships change. Children develop activities and social lives of their own.
A useful parenting plan should therefore provide stability without assuming that nothing will ever change.
It can include a way for parents to review arrangements and deal with future changes before every disagreement becomes another legal dispute.
Parenting Plans in Cape Town and Online
I assist parents with the development of parenting plans through Family Law Mediation in Hout Bay, Cape Town, as well as online across South Africa.
The objective is to create an arrangement that is practical, child-focused and sufficiently clear to reduce unnecessary conflict while still allowing family life to develop as children grow.
This page provides general information about parenting plans and mediation and is not a substitute for independent legal advice where legal rights, court proceedings or a child’s safety are in dispute.
