Since the commencement of the Children’s Act (Act 38 of 2005) on 1 April 2010, the concept of a parenting plan became one of the new “buzz words” where solutions to disputes pertaining to children in divorce actions were considered. Parenting plans, of course, do not only apply to disputes as a result of divorce actions, but we will deal therewith further below.
WHAT IS A PARENTING PLAN?
A parenting plan is not defined in section 1 of the Children’s Act but is somewhat described in section 33 read with section 34 of the Children’s Act, which states, amongst other things, the following:
- 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.
- A parenting plan may deal with the following issues:
- Where and with whom the child is to live;
- Maintenance of the child;
- Contact between the child and any of the parties to the parenting plan or other persons;
- Schooling of the child; and
- Religious upbringing of the child.
- A parenting plan must comply with the best interest of the child as provided for in section 7 of the Children’s Act;
- A parenting plan must be in writing and signed by the parties to the agreement; and
- A parenting plan may be made an order of court by way of an application in the prescribed format.
A parenting plan is an agreement between the parties which, if drafted properly, can represent the best possible arrangements pertaining to their children under the parties’ circumstances and avoid future litigation between the parties. It also aims to ensure the ideal participation of both parents and their minor child, especially where a parenting plan is drafted after a proper process of mediation.
WHO MAY AGREE ON A PARENTING PLAN?
As stated herein above, the co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan. Section 18 of the Children’s Act states that a person may either have full or specific parental responsibilities and rights in respect of a child. These responsibilities and rights include the following:
- To care for the child;
- To maintain contact with the child;
- To act as guardian of the child; and
- To contribute to the maintenance of the child.
It is therefore not only the biological parents of a child who may enter into a parenting plan. A parenting plan may be entered into by any party who is a holder of the above responsibilities and rights in respect of a child. A parenting plan may therefore be entered into by the following persons:
- The biological mother of a child
- The biological father of a child if he is married to the child’s mother or was so married during the child’s conception, birth or any time between conception and birth.
- The unmarried biological father who complies with the requirements provided for in section 21 of the Children’s Act;
- Persons whom acquired parental responsibilities and rights through parental responsibilities and rights agreements as provided for in section 22 of the Children’s Act;
- The adoptive parents of a child; and
- Persons whom acquired parental responsibilities and rights through orders of court.
It is clear from the above that the option of entering into a parenting plan is therefore not only available to parties involved in divorce proceedings, but all parties who has parental responsibilities and rights in respect of a child.
WHEN SHOULD PARTIES ENTER INTO A PARENTING PLAN?
In accordance with the provisions of section 33(2) of the Children’s Act, co-holders of parental responsibilities and rights who experience difficulty in exercising these responsibilities and rights must first seek to agree on a parenting plan before seeking assistance from a court of law. When parties, as a result of the aforesaid, seek to enter into a parenting plan, they must do so with the assistance of a family advocate, social worker or psychologist or through mediation through a social worker or other suitably qualified person, such as an attorney with the necessary skills or experience.
In other words, parties who are involved in a dispute pertaining to where a child is to live, their rights of contact or the amount of maintenance payable must first seek to enter into a parenting plan before the intervention of a court is sought. This is where mediation can be a very useful tool to assist the parties to reach a solution through a process which is less confrontational than litigation. Mediation, in contrast to litigation, rather focusses on seeking an amicable solution to a dispute and not to enforce an outcome on a party. This is especially important when considering that the parties will after the divorce encounter and have to solve various problems pertaining to their children often not thought of before the decision to divorce was taken. It is in the best interests of the children that the parties, after their divorce, are able to work together and communicate effectively when making arrangements involving their children. Solving disputes through mediation can form the foundation for such a situation where the parties can communicate constructively when dealing with the day-to-day issues of raising their children post-divorce.
PARENTING PLANS AND CHILDREN
The children are the sole reason for the existence of the concept of a parenting plan. The Children’s Act therefore is unambiguous in stating that the child must be involved in the process.
Regulation 11 to the Children’s Act states in no uncertain terms that the child must be consulted and given an opportunity to express his or her views during the development of the parenting plan. However, when doing so, the regulation stipulates that the child’s age, maturity and stage of development must be borne in mind and the child’s views must be considered accordingly. Furthermore, when a parenting plan has been agreed upon and entered into by the parties, the child, again bearing in mind his or her age, maturity and stage of development, must be informed of the contents of the parenting plan by the Family Advocate, a social worker, social service professional, psychologist, the mediator or the child’s legal representative.
Although the child must therefore be afforded an opportunity to express his or her views, it does not necessarily mean that it should be followed. Each matter will have to be determined on its own merits. The test always remains as to what is in the child’s best interest. However, the child’s voice may often assist in determining what is in his or her best interest.
During the course of preparing the parenting plan, there may on occasion be issues concerning the child that require urgent or immediate attention. These should be addressed without delay. The child should be given top priority and, most importantly, the parenting plan should be negotiated as an issue distinct and apart from financial or other issues between the parties, save for the child’s maintenance which must form part of the parenting plan. To link it to any other issue, for example spousal maintenance or the division of assets and liabilities, would be tantamount to giving the spouses free rein to use the child as a pawn to extract concessions from one another.
In order to maximise the advantages of the option of a parenting plan, both parents should commit to the following:
- Resolve conflict without putting the children in the middle of the battle or using them as pawns against the other party;
- Share parenting responsibilities and rights;
- Demonstrate positive conflict resolution; and
- Treat the other parent with respect.
From the above it is clear that it is in the interests of the parties and children that the parties endeavour to make use of a mediator in order to prepare a parenting plan in divorce actions where children are involved prior to approaching a court. Not only may this process be less confrontational and emotionally draining but will in all likelihood be more cost effective to the parties.
Andries Stander together with Natasha Fourie – Attorneys at Barnard Incorporated.
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.