ARE PARENTING PLANS REQUIRED BY LAW?

The Act does not provide a fixed definition of a Parenting Plan. However, looking at the provisions of the Act and its regulations dealing with Parenting Plans, one 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, guardianship and maintenance with regard to a child.

The Act discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those responsibilities and rights. Seeking mediation through a mediator or suitable organization is therefore a prerequisite for being allowed to approach the court. In the event of disagreements and to avoid the risk of further litigation (section 7(n) of the Children’s Act), parents must first seek to agree on a Parenting Plan, prior to approaching the court for a ruling on these rights and responsibilities.

Section 33 of the Act provides for two situations in which a Parenting Plan comes into play. They are the optional situation and the mandatory situation. These are discussed below:

(a) Optional situation – section 33(1)

Section 33(1) of the Act states the following:

‘(1) 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.’

This situation would apply when the parties have decided not to seek the assistance of the court for a structured parental plan. This would imply that there are not extenuating difficulties in exercising their responsibilities and rights but that they would still prefer a documented formalised structure.

(b) Mandatory situation – section 33(2)

Section 33(2) of the Act states:

‘If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a Parenting Plan determining the exercise of their respective responsibilities and rights in respect of the child.’

In this case the Act prescribes to them to first try to agree on a Parenting Plan before going to court. Should the parties fail to agree on a Parenting Plan after following the prescripts of the Act, the court may then be approached.