Parental Rights

When co-holders experience difficulties in exercising their responsibilities and rights, they must agree on a parenting plan to regulate the exercise of their responsibilities and rights as a prerequisite before approaching the court. They must first seek the assistance of the family advocate, social worker or psychologist; alternatively, they must go for mediation facilitated by a social worker or other suitably qualified person.

The Act discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those responsibilities and rights. The High Court has expressed its dissatisfaction with co-holders of responsibilities and rights who do not follow a conciliatory approach through cost orders. Seeking such assistance or mediation is therefore a prerequisite for being allowed to approach the court. 

Where the litigious process is win-lose, mediation is focused on achieving win-win. It is not a matter of ‘Can my lawyer outsmart your lawyer?’; it is about sitting down and getting rid of all the angst and aggression. After agreeing to a plan, parents can choose to lodge a signed plan with the Office of the Family Advocate or have it made into an order of the court. Once a plan is made an order of court, breach thereof may lead to contempt of court. For some parents, especially those involved in high conflict separations and in cases of domestic violence, a higher level of accountability is required and so lodging with the court is an absolute necessity. Most parents, however, will draft a plan, sign it and just abide by it without ever referring to it again.

The parties to the plan may amend or terminate the plan on application. If the plan was registered at the family advocate, they must apply directly to the Office of the Family Advocate. Only three categories of persons may approach the court for an amendment or termination:

  • the co-holders of parental responsibilities and rights;
  • the child; or
  • a person acting in the child’s interests.

What is a parenting plan?

The Children’s Act offers parenting plans as a method to assist parents with how to exercise their parental responsibilities and rights after separation or divorce. Parenting plans are a relatively new concept in South Africa, but are already popular in countries such as the United States and Australia, and in certain European countries. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Act, and must be in terms of a prescribed form and include the following issues:

  • where and with whom the child is to live;
  • the maintenance of the child;
  • contact between the child and any other person; and
  • the schooling and religious upbringing of the child.

A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party, usually a social worker, psychologist or family lawyer, acting as a mediator. The Act requires that children also be consulted when such a plan is drafted so that they have an opportunity to give their input on who they wish to live with, how much time they wish to spend with each parent and where they wish to spend special occasions, as well as any other areas in which they feel they should have a say. The age of the child will determine the level of input allowed/required. Once the plan is finalised, it is signed by both parents. Parenting plans need to be continually reviewed, as children’s developmental needs change over time. Reviews can range from every six months to every two years, depending on the child’s age.

During the drafting phase, the mediator will explore all aspects of family life, focusing on what is in the best interests of the child, and, together with the parents, will determine things such as how often and when each parent will see the child, which home will become the primary residence, which religion the child will be brought up in, which schools he/she will attend and where the child will spend holidays. In addition, the plan may specify how parents will communicate with each other and the child, and how new partners will be introduced. Typically, a parenting plan may state that the parents will encourage the child to phone the other parent each day, or that the parents agree not to speak negatively about each other in front of the child.

The parenting plan will also have a dispute resolution section, appointing a mediator and/or facilitator to attend to any disputes that may arise between the parents and to intervene in circumstances where one parent breaches the plan, for example frustrating contact between the other parent and the child.

Developing a parenting plan is an essential part of the divorce process. Although parenting plans can be drawn up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner rather than later. It is important for children to have plenty of access to both parents. Where both parents have been actively involved in the child’s life before the divorce, a more equal division of parenting time can occur. In situations where one parent has done the majority of the child care, that parent should continue to be the primary caregiver until the child has time to adapt to spending more time with the secondary parent. In these situations, it may be feasible over time for the child to spend an equal amount of time with each parent. Keep in mind that the younger children are, the harder it is for them to be away from either parent, particularly a primary parent, for long periods of time. Sometimes shorter, more frequent exchanges are helpful. As children grow older, they can tolerate longer separations. Younger children will often tolerate a more lengthy stay away from a parent if they have siblings with them. As children reach the teenage years, they are much more capable of 50 per cent parenting splits. This will of course have to be considered with input from the child and with due regard to the child’s schooling, participation in sport and extra-mural activities and religious or moral upbringing.  Having more than one home base is not always in the best interests of the child.

Some parents use the week on/week off principle, in which the child stays with one parent one week and then with the other parent the following week. The downside is the long separation from each parent. Children’s sense of time is quite different from adults, and a week might be too long in some cases. Another popular plan is the 5-2-2-5, where one parent has the child on Mondays and Tuesdays, the other parent has the child on Wednesdays and Thursdays, and Fridays, Saturdays and Sundays are alternated between the two. This plan has consistency, but more transitions between households. It does, however, keep both parents involved on a weekly, if not daily, basis.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family. Remember that parents can still participate in their children’s lives even when they are living elsewhere or does not have frequent or equal contact with them.

Parenting plans should minimise loss and maximise relationships for children, and both parents should realise that they are more important to their children than alternative care providers. Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible.