C&A Friedlander Attorneys

This is for the parents having a difficult time sharing their children. Since parenting mostly consists of telling your children “how many more minutes” they have left of any particular activity, you would think that time-management would be second nature to you by now.

Unfortunately, just like the rest of parenting – it’s just not as easy as it seems. This is where parenting plans may come to your aid.

For parents going through divorce, a parenting plan provides a voice to the feelings, needs and rights of the children while reflecting on the requests of both parents. Parenting plans are structured by professionals who will assist you in managing post-divorce conflict dynamics, like a peace treaty between two parties.

If you are looking for a more concrete idea of what a parenting plan is, you could define it as a written agreement between co-holders of parental responsibilities and rights, outlining in detail their respective responsibilities and rights of care, contact, and guardianship with regard to a child.

The parenting plan generally deals with the issues of living arrangements, 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 will live
  • contact arrangements between the child and other associated individuals
  • stipulations pertaining to the schooling and religious upbringing of the child

Once the parenting plan has been finalised and signed by both parties, it becomes a legally binding agreement.

It is not compulsory to have a formal parenting plan when the divorce is amicable and the parents are able to negotiate arrangements harmoniously. However, in terms of section 6(1) (a) and (b) of the Divorce Act, the Court will not grant a decree of divorce unless it is satisfied that the parents have made proper arrangements in respect of the children’s welfare. So, yes; while it is technically not required to record these aspects in a parenting plan per se, there must be a record of the terms that the parents decide on in this regard.

In a high-conflict divorce, where parents struggle to negotiate or agree on terms that implicate the children, it is imperative that a parenting plan be drafted. A court may also order that a parenting plan be drafted in situations where they deem it necessary.

It is important to note that entering into a parenting plan is not exclusive to divorce proceedings. If the parents do not formally enter into a parenting plan on divorce, the terms relating to the children’s welfare will be set out in the court order. As such, parents always have the option to vary the terms of either their parenting plan or the court order.

Whilst not compulsory, parenting plans have greater enforceability in law when they have been made orders of court than when it has only been registered with the Family Advocate’s Office, particularly in divorce proceedings.

When parents resolve their differences through an amicable settlement, it is natural to believe that the harmony felt between them will be maintainable. However, the situation may change at a later stage and raise disputes between the parents. In this case, if there is no parenting plan in place, or if the parenting plan has not been made an order of court, the best interests of the child may be compromised.

It is advisable to ensure that the parenting plan is made an order of court, especially in high-conflict divorces, in order to ensure a higher level of accountability, as breach thereof may lead to contempt of court. A detailed parenting plan can foresee that those future challenges are minimised.

At the heart of any parenting plan is, hopefully, the intention of both parents to make the challenging transition significantly easier on their children, who are both most loved and most vulnerable. The parenting plan is a valuable safety net that gives children of divorce much needed security and a knowledge that, although their parents are no longer married, they are both still parents and are committed to raising them for however long it takes.

Written by Keesha van Schalkwyk

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).