What must the Parenting Plan deal with according to the Act?
The contents of both optional and mandatory Parenting Plans can vary according to section 33(3) of the Act:
‘A Parenting Plan may determine any matter in connection with parental responsibilities and rights, including –
(a) where and with whom the child is to live;
(b) the maintenance of the child;
(c) contact between the child and –
(i) any of the parties; and
(ii) any other person; and
(d) the schooling and religious upbringing of the child.’
Furthermore, the regulations to the Act prescribe child participation, bearing in mind the child’s age, maturity and stage of development.
Regulation 11, which deals with participation of a child in preparation of Parenting Plans states the following:
‘(1) Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a Parenting Plan, and granted an opportunity to express his or her views, which must be accorded due consideration.
(2) When a Parenting Plan has been agreed [on] the child … bearing in mind the child’s 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, suitably qualified person or the child’s legal representative.’
Therefore, before an optional or mandatory Parenting Plan can be registered with the family advocate or made an order of court, Regulation 11 must be applied.
When do I need a Parenting Plan?
The Act does not prescribe exactly when a Parenting Plan should be drawn up. It can therefore be composed at any time after the conclusion of the marriage or relationship. It is generally wise to develop the Plan before the divorce or separation is finalised. His will ensure that the Parenting Plan then becomes part of the settlement and the agreements therein becomes the binding rules for both parents.
A Parenting Plan can also be drawn up after the dissolution of the relationship and changes regarding the issues concerning the children can be formalised. Parenting plans should be registered either at the Office of the Family Advocate or the Children’s Court who are authorised to make the contents of the plan a legally binding order.
Who should agree on a Parenting Plan?
Not all holders of parental responsibilities and rights feel that there is a need for a court registered Parenting Plan. Parenting plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. The principle of “rather-safe-than-sorry” should be adopted when it comes to drafting of Parenting Plans. Children (and parents) operate so much better when they have a definite framework to work from.
Participation on deciding on a Parenting Plan is however not limited to the holders of parental rights and responsibilities.
Child participation (section 10 of the Children’s Act)
The input of minor children with consideration to their developmental stage and level of maturity, carries considerable weight. The Children’s Act however, makes it clear that the voice and participation of a minor child only relates to their right to be heard and that does not empower him/her to a right of veto or consent. Final decision making is deferred to the parents, who act as legal guardians by law.
Bearing in mind the age, maturity and stage of development it is of the utmost importance that the voice of the child/children be heard during the development of the Parenting Plan and that the views of such a child/children have been given due consideration.
Recognising the child/children’s right to participate is further highlighted in section 31 of the Act, which deals with major decisions involving children by a person holding parental rights and responsibilities.
Third party participation
Some rights may be ceded to a third party if both parents jointly agree, for instance a grandparent (in a Parenting Plan) where the parents are for some reason indisposed or unfit, for instance, where the separating spouses are both addicted to debilitating substances or suffer from a crippling disease.