Parenting plans in South Africa

Do we have to have one?

Not in every case. But if you both have parental responsibilities and rights and you are having difficulties, the Children’s Act says you must first try to agree on a parenting plan before you go to court.

What goes into a parenting plan?

The Act says a plan may cover any matter, including:

• where and with whom the child lives;
• maintenance;
• contact with each parent and with other people, like grandparents;
• schooling and religious upbringing.

Plans that work well usually also cover:

• school holidays, birthdays and special days;
• handovers: where, when and who drives;
• phone and video calls;
• medical decisions and medical aid;
• sport and other activities, and who pays;
• travel, passports and trips out of the country;
• how you will solve disagreements: talk first, then mediation, then court;
• when you will review the plan, for example as the children get older.

Where there has been domestic violence, a plan can also include safety rules, such as supervised contact or handovers at a neutral place.

The child’s best interests come first

The plan must be in the child’s best interests. The Act lists the things a court looks at, including the child’s relationship with each parent, each parent’s ability to care for the child, the effect of change on the child, the child’s age and maturity, and the need to protect the child from harm.

A child who is old and mature enough must be allowed to give their views, and those views must be taken seriously.

Getting help to make the plan

If you are making the plan because you are having difficulties, the Act says you must get help from either:

• a family advocate, social worker or psychologist; or
• a mediator, such as a social worker or another suitably qualified person.

The Office of the Family Advocate is part of the Department of Justice and its services are free. You may have to pay for extra expert reports, such as a psychologist’s assessment.

Step by step: making and registering a plan

1. Agree on the plan, with help from the Family Advocate, a social worker, a psychologist or a mediator if you are in difficulty.
2. Write it down and both sign it.
3. Choose: register it or make it a court order. You apply on Form 8, with a copy of the plan.
4. Add the helper’s statement. If a professional helped, they complete Form 9. If a mediator helped, they complete Form 10. These confirm the child was told about the plan and had a chance to give their views.
5. Lodge it. With the Family Advocate to register it, or with the court (the High Court, the divorce court, or the children’s court where the child lives) to make it an order.

Registered plan or court order?

Many family lawyers advise registering the plan and also having it made a court order, so it is easier to enforce.

What if a parent doesn’t follow the plan?

If your plan is a court order, refusing or preventing contact against it is a crime under section 35 of the Children’s Act, with a fine or up to a year in prison. The same section says the parent who has the child must tell the other parent in writing, straight away, if their home address changes.

Other routes are mediation, going back to the Family Advocate, a parenting coordinator if one was appointed, or an application to court.

Whatever route you take, a dated record of each missed handover or refused call makes your case much clearer.

Decisions that need both guardians

Most day-to-day decisions can be made by the parent the child is with. Unless a court orders otherwise, every guardian must agree before a child:

• gets a passport;
• leaves South Africa;
• marries or is adopted;
• has immovable property (like a house) dealt with.

Before any big decision, a parent must also consider the child’s views and the other parent’s views.

Unmarried fathers

A biological mother always has full parental rights. A married father does too. An unmarried father gets full parental rights automatically if either:

• he lived with the mother in a permanent life-partnership when the child was born; or
• he has acknowledged he is the father (or paid customary damages), and has contributed, or tried in good faith to contribute, to the child’s upbringing and maintenance for a reasonable time.

If the parents disagree about whether he qualifies, they must first go to mediation. Either can then ask a court to review the outcome.

Questions parents ask

Do we have to have a parenting plan?

Not in every case. If you both have parental rights and are having difficulties, the Children’s Act says you must first try to agree on a parenting plan before going to court.

Does the Family Advocate charge for help with a parenting plan?

No. The Family Advocate’s services are free, though you may have to pay for extra expert reports.

What must a parenting plan look like?

It must be in writing, signed by both parents, and in the child’s best interests. To register it or make it a court order, you attach it to Form 8, plus Form 9 or Form 10 if a professional or mediator helped.

Can we change a parenting plan later?

Yes. The Family Advocate can amend or end a registered plan if you both apply. Only a court can change a plan that has been made a court order.

Is it a crime to refuse contact under a parenting plan?

If the plan is a court order, refusing or preventing contact against it is a crime under section 35 of the Children’s Act. A plan that is only registered is not clearly covered, which is one reason many lawyers advise making it a court order.

Does an unmarried father have rights?

Yes, if he lived with the mother in a permanent life-partnership at the birth, or he has acknowledged paternity and contributed, or tried to contribute, to the child’s upbringing and maintenance for a reasonable time.