Divorce and Family Law

 

 

 

A child custody and parenting plan is a written agreement between parents that outlines how they will raise their child after a separation or divorce. It is a legal document that must be approved by a court and becomes part of the divorce settlement or custody order.

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Child Custody and Parenting Plans in South Africa

In South Africa, the Children's Act 38 of 2005 governs child custody and parenting arrangements, prioritizing the best interests of the child above all else. This legislation provides a framework for parents to co-parent effectively after separation or divorce. A key tool in this process is the parenting plan.

What is a Parenting Plan?

A parenting plan is a written agreement between co-parents outlining how they will share parental responsibilities and make decisions regarding their child(ren). It serves as a roadmap for raising children after separation or divorce, covering crucial aspects such as

  •    Primary Care (Residence) Where the child will primarily live.
  •    Contact  Visitation for the child to maintain a relationship with the parent they do not live with and other significant individuals.
  •    Guardianship Decisions regarding the child's welfare, consent for travel, medical treatment, education, religious upbringing etc
  •    Maintenance The financial responsibility for the child's upbringing, shared by both parents.
  •    Information Sharing How parents will communicate and share information about the child.
  •    Decision-Making How major decisions about the child will be made (e.g., jointly or individually with consultation).
  •    Dispute Resolution A process for resolving disagreements between parents.
  •  Written Agreement The plan must be in writing and signed by both parents.
  •  Best Interests of the Child The plan must prioritize the child's best interests.
  •  Court Submission (Often) While optional in some cases, parenting plans are often submitted to the court as part of divorce proceedings or for registration with    the office of the Family Advocate. Making a plan for a court order allows for enforcement in case of breaches
  •  Child's Input Children should be consulted when a parenting plan is drafted, with the level of input depending on their age and maturity.
  •  Review and Amendment Parenting plans should be reviewed periodically (every 6-24 months, depending on the child's age) to accommodate the child's evolving needs. The plan can be amended or terminated by application to the court or the Office of the Family Advocate (if registered there).

Types of Custody (Parental Responsibilities and Rights)

The Children's Act focuses on parental responsibilities and rights rather than "custody" in the traditional sense. These responsibilities and rights include care, contact, guardianship, and maintenance. Different arrangements can be put in place depending on the circumstances:

  • Co-Holding of Parental Responsibilities and Rights Both parents typically share parental responsibilities and rights, allowing them to act independently except where a court order, law, or the Children's Act specifies otherwise.
  • Primary Residence The child lives primarily with one parent, who is considered the primary caregiver. The other parent has contact rights.
  • Contact Rights The non-primary caregiver has the right to maintain contact with the child.
  • Limited or No Contact In cases of abuse, violence, or where contact is deemed not in the child's best interests, contact may be limited or denied. Supervised contact may be an  option in some cases.

Custody for Unmarried Parents

  •   Mothers An unmarried mother automatically has full parental responsibilities and rights.
  •   Fathers An unmarried father can acquire parental responsibilities and rights by:
  •        Being in a life partnership with the mother at the time of the child's birth.
  •        Consenting to be identified as the father.
  •        Applying for recognition as the father under Section 26 of the Children’s Act.
  •        Paying damages in terms of customary law.
  •        Contributing or attempting to contribute to the child's upbringing and maintenance.

Factors Considered by the Court

When determining parenting arrangements, the court considers various factors, including 

  •    The child's needs.
  •    Each parent's ability to meet those needs.
  •    The child's relationship with each parent.
  •    The child's preferences (if they are mature enough).
  •    The parents' ability to cooperate and co-parent.
  •    The stability of the child's living arrangements.

Mediation and Dispute Resolution

The Children's Act encourages parents to attempt mediation or seek assistance from a family advocate, social worker, or psychologist before approaching the court. This promotes a cooperative, child-focused approach.

Benefits of a Parenting Plan

  •    Reduces conflict between parents.
  •    Provides stability and structure for children.
  •    Promotes consistent parenting.
  •    Minimizes stress for children during a difficult time.

Our Expertise

Aucamp Attorneys  have extensive experience in advising on all aspects of family law, including drafting and implementing parenting plans. We can guide you through the process, ensuring your child's best interests are protected. Contact us today for a consultation with one of our specialist family law attorneys.