The parenting plan as legal instrument

October 1st, 2018
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By Marici Corneli Samuelson

The concept of a parenting plan is arguably one of the most useful legal instruments introduced by the Children’s Act 38 of 2005, purposely designed to lead parents through the emotionally charged quagmire of a messy breakup of a previously trustful relationship. Such a plan becomes pivotal to govern expectations and delineate rights and responsibilities, especially in the critical first 18 months after separation when nerves are exposed, egos are triggered, and communication may well have deteriorated to a point of complete standstill.

The parenting plan is the subject of regulation in ss 33 to 35 of the Children’s Act and the legal milestone that brought much needed clarity to this somewhat fractured section of South Africa’s (SA’s) family law. The Children’s Act was instrumental in incorporating and replacing an array of separate legal mechanisms, including –

  • the Children’s Act 33 of 1960;
  • the Age of Majority Act 57 of 1972;
  • the Child Care Act 74 of 1983;
  • Children’s Status Act 82 of 1987; as well as
  • the Guardianship Act 192 of 1993.

The Children’s Act also incorporated s 4 of the Prevention of Family Violence Act 133 of 1993 and the Natural Fathers of Children born out of Wedlock Act 86 of 1997.

The completion of the Children’s Act has turned out to be a ten-year endeavour, which remains a continuous work in progress. The golden thread that runs throughout the project is giving a legal platform to the best interests of the child. It is one of the principle law responsibilities entrusted on SA’s legal justice system, which has historically culminated in the notion of the High Court acting as the upper guardian of all children.

The implementation of certain sections of the Children’s Act only came into effect as late as July 2007, and others, including those pertaining to the practical implications of drawing up a parenting plan, was only promulgated in April 2010.

From a constitutional law perspective, the Children’s Act could be seen as the natural legal manifestation of what is circumscribed by the Bill of Human Rights, specifically as it pertains to the best interests of the child, as set out in ch 28 of the Constitution. The Children’s Act endeavours to expand on the ambit of the previous regime relating to ‘custody and access,’ to actuate a more comprehensive regulatory system – one that could incorporate the complete range of parental rights and responsibilities, as they relate to the care of, as well as contact with, all affected minor children.

It should be evident that the requirements of the Children’s Act will commonly be scrutinised at times of agitation, separation and/or divorce, of either married or unmarried couples, where children are involved. This prompts the second golden rule that could be delineative of the Children’s Act, namely that both parents, bar any extraordinary disqualifying circumstances, will remain holders of full parental responsibilities and rights with regard to the children under the age of 18.

In this regard ss 18(1) and 31(1) and (2) lays emphasis on the parental right and responsibility of both parents regarding the care and contact of the child and to have input in the major decisions regarding the child’s future, as well as the pivotal daily decisions pertaining to the care, contact, welfare, and personal development of the child. By law, parents are obliged to confer and cooperate, on mostly all important decisions, including those pertaining to living arrangements, namely, health, education, financial obligations, legal matters and discipline.

To this end, it could be regarded as the primary objective of the parenting plan to regulate how parents will exercise their respective rights and responsibilities under the changed set of circumstances – or to be more precise – a parenting plan can be defined as a unique document, which is compiled for a specific family, and represents the best possible solutions to avoid future litigation, and to ensure the optimal participation of both parents and their minor child/children.  Developed by means of a mediated process prescribed by legislation to address the ever-changing needs of the minor child/children involved taking into account the inputs made by the minor child/children given their age, maturity and developmental stage, always complying to the best interest of the minor child/children standard.

It should be noted that the Children’s Act does not compel parents, that are in agreement on co-parenting measures, to present a parenting plan, but it does necessitate that, in the event of disagreements and to avoid the risk of further litigation (s 7(n) of the Children’s Act), they first ‘seek to agree’ on a parenting plan, prior to approaching the court for a determination on these rights and responsibilities. Also, these rights and responsibilities are not stated as a numerus clauses of competencies and the parties are free to include whatever agreements they may see fit.

From a legal perspective though, there are certain fundamentals that would characterise such an agreement. These are, if not limited to, the following:

  • The plan needs to be unique to a particular family.
  • Optimal participation of both parents will be essential.
  • Child participation (s 10 of the Children’s Act). A minor child with consideration to their developmental stage and level of maturity, will be of vital importance.

The Children’s Act clearly states that the participation of the minor relates to their right to be heard, and does not extend to a right of veto or ultimately, of a right of consent. The child is still a minor and decision making is deferred to the parents, who act as legal guardians by law.

The law does allow for both parents to jointly cede some of these rights to a third party, for instance a grandparent (in a Parental Rights and Responsibilities Agreement) where the parents are for some reason incapacitated, for instance, where the separating spouses are both addicted to debilitating substances.

At the outset a number of benefits associated with a mediated parenting plan would be immediately evident:

  • When rules are negotiated in a safe environment and set out in writing, it could alleviate some of the animosity associated with vulnerable egos in contest, dealing with the trauma of separation.
  • The pitfalls of unnecessary litigation could be better navigated.
  • The constantly changing needs of the minors will be easier to address.

It should be clear that the concept of a parenting plan and the role of both parents in the developmental process, has the supplementary benefit of offsetting the focus from the antagonism between the parents to their respective proactive roles in the wellbeing of the child. This is also where a skilled professional may act as subtle guide to impress on the parents the positive value of parenting skills development – to communicate the truism that no one is an effective educator by nature – and that all may benefit from expanding their skillset in the form of a parent effectiveness training programme.

Parents could be enthused by reframing those well-rehearsed rhetorical questions that they probably already contemplate in their own quiet time – where they ponder on issues like cementing the relationship with their child, improving communication and understanding, fostering mutual respect, and also, how to constantly hone their skills in handling conflict situations without running the risk of alienating the child or ultimately damaging the relationship.

Practical and procedural implications

The parenting plan as a fundamental agreement in respect of co-parenting arrangements, as defined by the Children’s Act and plays an essential role in divorce proceedings where minors are involved. It is a focus in collaborative child focused mediation in divorce where, in practical terms the plan will first be mediated and attached as an addendum to the settlement agreement, therefore, rendering it the status of an order of the court. In this instance it is also important to note that this remedy is not exclusive to divorce proceedings.

In cases where a divorce has already been granted, mediation plays an important role wherein the parenting plan could be drafted and registered with the Family Advocate’s Office. It is important to adhere to Form 10 titled ‘Statement of social worker or other suitably qualified person and that the parenting plan was prepared after mediation’. Readers are urged to also focus on reg 10 and s 34(3) of the Children’s Act, as well as GNR 261 GG33076/1-4-2010 at p 176.

In your application for registration of a parenting plan it is important to use form 8 titled ‘Application for registration of a parenting plan or for a parenting plan to be made an order of court’. Regulation 9 and s 34(2) of the Children’s Act, as well as GNR 261 GG33076/1-4-2010 at p 172 should also be focussed on.

It is important to note that a parenting plan has greater enforceability in law when it has been made an order of the court than when it has only been registered with the Family Advocate’s Office.

At first glance, compliance with the Children’s Act deals with the issues of living arrangements, maintenance and parental contact, and to this end there is a prescribed list of concerns that need to be addressed in the plan, namely –

  • where and with whom the child is to live;
  • how responsibility for the maintenance of the minor is to be divided;
  • contact arrangements between the child and other associated individuals; and
  • stipulations pertaining to the schooling and religious upbringing of the child.

Once the plan is finalised and signed by both parents, it becomes a legally binding agreement. When additionally filed with the Family Advocate’s Office, the latter will peruse the agreement to determine conformity with the Children’s Act and may recommend amendments if appropriate and then as stated, the parties could apply for the plan to be made an order of the court.

It is also important to note that the parties to the agreement are allowed by the Children’s Act to reassess the parenting plan from time to time to adapt to changing circumstances. In fact, the prudent mediator will advise the parents to commit to at least a yearly reappraisal of the plan in a formal mediation session.

Reflecting on the significance of a parenting plan

Children tend to act as an emotional barometer with regard to the health of the family unit, which would also imply that any measure of tension that exists or may persist, could reflect in their personal conduct. Parents are often ignorant of this reality and mistakenly assume that the tensions created behind closed doors do not affect the emotional wellbeing of the children, until they are suddenly confronted by the intervention of a school principal observing antisocial behaviour.

It is within this context that a parenting plan gains significance, since it assists in managing pressure situations before they could become emotionally toxic. When boundaries are delineated, more certainty is created, and actions tend to become more predictable – with the added benefit that experience has shown that the earlier these boundaries are clarified, the easier it becomes for parents in potentially toxic situations to navigate the pitfalls.

The skilled mediator will assist parents to explore the new realm of co-parenting and guide them in compiling a family-specific parenting plan that could provide for the children’s essential needs pertaining to residence, maintenance, structure (scheduling) and contact. In this regard, the mediation process may be viewed as a potentially creative opportunity for parents despite the difficult circumstances to reaffirm their commitment as devoted guardians, and to start redefining their respective roles as co-parents, where they were previously use to act as a couple.

The mediator will ensure that the plan has both structure and flexibility structure, to remove uncertainties and allow the child to adjust to what will inevitably be experienced as a disrupted family environment, and flexibility, to allow the parents to accommodate each other’s possibly changing daily schedules. A principle objective of the process will be to establish trust and open basic communication lines, even if only cordial, to facilitate an environment conducive to collaborative co-parenting.

Experience has shown that a skilfully drafted parenting plan has some success in reducing the legal quandary of parental alienation, namely where the controlling parent is now obliged to adhere to prior scheduling arrangements that would enforce parental access, but may also remove some of the triggers.

With this goal in mind, the mediation process and parenting plan is purposely designed to allow parents the opportunity to gradually adjust to the often-unfathomable realities of a post-separation or divorce environment, where the children run the danger of becoming reluctant bargaining chips in the parents’ attempts to settle personal scores. This is where the assistance of an objective third party with the necessary expertise regarding child focussed mediation and children’s developmental needs becomes invaluable.

Marici Corneli Samuelson BIuris (UP) is the Director at Family Assist and a Mediator at Mediationworx in Pretoria.

This article was first published in De Rebus in 2018 (Oct) DR 48.

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