How To Set Up A Parenting Plan In South Africa

A parenting plan in South Africa is a written agreement between parents (or a court-ordered arrangement) that sets out where the child lives, contact with each parent, maintenance, schooling, and religious upbringing, and it must be lodged with the Office of the Family Advocate or made an order of court under the Children’s Act 38 of 2005 to be legally binding. Where divorce is contemplated, the Divorce Act 70 of 1979 requires a parenting plan to be filed alongside the divorce application, and section 7 of the Children’s Act makes the best interests of the child the controlling standard in every decision. Parents who agree on the contents can finalise the plan through mediation, register it with the Family Advocate, or have it made an order of court; parents who cannot agree proceed through the Family Advocate’s evaluation and, if necessary, a contested hearing before a court.

What a Parenting Plan Is and When You Need One

A parenting plan is a written agreement setting out how separated or divorcing parents will exercise their parental responsibilities and rights. The Children’s Act 38 of 2005 uses the framework of “parental responsibilities and rights” rather than the older “custody” and “access” terminology — when you draft a plan today, the focus is on which parent holds which decision-making areas and how day-to-day care is shared, not on who “wins” custody.

A plan is needed whenever parents separate, divorce, or otherwise need to clarify the care, contact, and decision-making arrangements for a child — not only on divorce. The plan must be in the prescribed form and must address at least four statutory minimums:

• Where and with whom the child is to live
• Maintenance of the child
• Contact between the child and any other person
• Schooling and religious upbringing

The plan becomes legally binding only when registered with the Office of the Family Advocate or made an order of court — an unsigned or unregistered draft has no enforceable force.

The Legal Framework: Children’s Act 38 of 2005 and Divorce Act 70 of 1979

The Children’s Act 38 of 2005 is the governing statute. Section 7 sets the best interests of the child as the paramount consideration in every matter affecting the child, and that standard runs through every step of the process — from drafting to variation years later.

Where divorce is the trigger, section 41 of the Divorce Act 70 of 1979 requires a parenting plan to be filed with the divorce application; the court must consider the plan’s provisions before granting the divorce. The Family Advocate’s role flows from section 4 of the Mediation in Certain Divorce Matters Act 24 of 1990 read with the Children’s Act — the Family Advocate evaluates parenting arrangements in contested matters and may recommend a specific arrangement to the court.

The Act discourages approaching the court as a first resort and the High Court has imposed cost orders against parties who failed to follow a conciliatory approach before litigating. In practice, this means parents who jump straight to litigation without attempting mediation or the Family Advocate process risk paying the other side’s costs.

Who Drafts the Plan

Parents are the starting point — a well-drafted plan reflects the actual circumstances of the family rather than a generic template. Practical support is usually drawn from a family lawyer, mediator (social worker, psychologist, or suitably qualified third party), and where contested, the Office of the Family Advocate.

Generic templates are discouraged because they are not tailored to the family’s specific circumstances and often produce disputes and costly legal action later. Children must be consulted during drafting on matters such as who they wish to live with, how much time with each parent, and where to spend special occasions — the level of input depending on age and maturity.

For Gauteng families working through a separation, Burger Huyser Attorneys‘ Family Law practice runs parenting-plan work out of multiple branches with named family-law practitioners on its roster, including Director Anna-Mi Nel, Natasha van Deventer (Bedfordview), Karisha Singh (Sandton), Denisha Padachey (Sandton), Ruth Gray (Roodepoort), and Natasha Earle (Roodepoort).

Step-by-Step: Setting Up a Parenting Plan When Parents Agree

1. Identify the issues to cover — using the four statutory minimums (residence, maintenance, contact, schooling and religion) plus anything else specific to the family, such as medical decisions, extra-murals, third-party contact, and dispute resolution.
2. Engage a mediator or family lawyer to assist with drafting if either parent wants support; mediation is the route preferred by the Children’s Act 38 of 2005.
3. Draft the plan in the prescribed form, signed by both parents, with witness signatures, identity details, and dates.
4. Lodge the signed plan with the Office of the Family Advocate for registration, or have the plan made an order of court — either route makes it legally binding.
5. Build in a review clause — plans are not static; reviews typically range from every six months to every two years depending on the child’s age and the family’s circumstances.
6. Align the plan with any wills, guardianship provisions, or maintenance orders — the plan should not contradict other legal documents covering incapacity, death, or ongoing financial support.

Step-by-Step: When Parents Cannot Agree

1. Either parent applies to the Office of the Family Advocate to convene an enquiry into the children’s best interests.
2. The Family Advocate (or a designated family counsellor) meets with both parents, and where appropriate the children, and prepares an evaluation report.
3. The Family Advocate’s report is filed with the court, with a recommendation on residence, contact, and any other contested issue.
4. If both parents accept the recommendation, it can be made an order of court on an unopposed basis.
5. If either parent disputes the recommendation, the matter proceeds to a contested hearing before a judge, who decides on the best-interests standard in section 7 of the Children’s Act.
6. Pending the hearing, the court may make interim arrangements for contact, residence, or maintenance.
7. After the order is granted, breach is enforceable through contempt-of-court proceedings — penalties include fines, garnishee orders, and in extreme cases jail time.

What the Plan Must Contain — Practical Contents Checklist

Area	What to set out
Care and contact schedule	Weekdays, weekends, holidays, school terms, pick-up and drop-off logistics
Decision-making authority	Education, healthcare, religion, extra-curricular activities; sole versus joint guardianship allocations
Maintenance and cost allocations	Child maintenance, medical aid, school fees, uniforms, extra-murals, and how “extraordinary” expenses are split
Communication protocols	Phone and video calls with the non-resident parent, notice periods for changes, emergency contact arrangements
Contact with third parties	Grandparents, step-parents, extended family
Dispute resolution ladder	Internal communication period (e.g. 7 days), mediation referral (e.g. 21 days), then family advocate or court
Safety and protection provisions	Domestic-violence safeguards, supervised contact, escalation routes
Variation and review clause	How the plan will be reviewed and amended over time

Common Schedule Models (and When Each Fits)

Model	How it works	When it fits
Week on / week off	Child stays with one parent for a full week, then the other	Older children and teenagers; downside is the long separation from each parent for younger children
5-2-2-5 alternating days	Parent A has Mon–Tue, Parent B has Wed–Thu, then Fri–Sun alternates	More transitions, but better day-to-day contact for younger children
Primary residence with scheduled contact	Child lives primarily with one parent and has fixed contact with the other (alternate weekends, midweek visits, holiday rotation)	Where shared care is impractical due to distance, schooling, or work
Age-specific arrangements	0–2: alternating days with daily contact and feeding considerations; 3–12: fixed week/weekend with holiday rotation and school transport; 13–18: flexible arrangements consulting the teenager’s preference	Tailored by life stage rather than a one-size-fits-all schedule

Court Approval: When and How

The court will not grant a final divorce order if the parenting plan does not adequately provide for the child — section 41 of the Divorce Act 70 of 1979 gives the court an explicit gatekeeping function. In an uncontested divorce where parents agree on the plan, the court typically endorses the plan by making it part of the divorce order. In a contested matter, the court relies on the Family Advocate’s report and any section 7(3) “best interests” factors before deciding on care, contact, and guardianship.

Breaches of a registered plan or court order are enforceable through the Children’s Court (care and contact) or Maintenance Court (financial breaches); a court-ordered plan that is breached may also support a contempt-of-court application.

Variation, Review, and Termination

Parents may amend or terminate the plan by application once it is registered — applications are made directly to the Office of the Family Advocate where the plan was originally registered. Only three categories may approach the court for amendment or termination: co-holders of parental responsibilities and rights, the child, or a person acting in the child’s interests.

Reviews are built into the plan and range from every six months (younger children with fast-changing needs) to every two years (older children with settled arrangements). Material changes in circumstances — a parent’s relocation, a child’s changing schooling needs, or a change in family composition — typically trigger a fresh review.

Parenting Plans in Gauteng: Filing Through the Office of the Family Advocate

A parenting plan registered in Gauteng is lodged with the regional Office of the Family Advocate, which operates from offices in both Pretoria and Johannesburg and runs the enquiry process in contested matters under section 4 of the Mediation in Certain Divorce Matters Act 24 of 1990 read with the Children’s Act. Uncontested divorces that include a parenting plan typically proceed through the Divorce Court at the Gauteng Division of the High Court — the Pretoria seat for matters from Centurion, Pretoria, and northern Gauteng; the Johannesburg seat for matters from the rest of the province — with the court endorsing the plan as part of the divorce order under section 41 of the Divorce Act.

Contested parenting-plan matters are evaluated by the Family Advocate and, where the report is not accepted, decided by a judge in the Family Court section of the Gauteng Division. The Office of the Family Advocate, accessible through the Department of Justice and Constitutional Development’s justice.gov.za portal, remains the authoritative source for the current prescribed form, the enquiry process, and the regional office that covers a given Gauteng district.

Parents in northern Gauteng (Centurion, Pretoria, Midrand) typically start at the firm’s Centurion branch on 012 644 4990 or the Pretoria branch on 012 471 5700; parents in Johannesburg, Sandton, Roodepoort, Bedfordview, Alberton, and the East Rand start at the Linden/Randburg head office on 011 888 0246 or the closest regional branch.

Frequently Asked Questions

Do I need a parenting plan if I am not getting divorced?

Yes — a parenting plan is useful whenever parents separate, whether or not divorce follows. The Children’s Act 38 of 2005 applies to all separated families, and registering the plan with the Office of the Family Advocate or having it made an order of court makes it legally enforceable in the same way a divorce-related plan would be. Unmarried parents in particular benefit from a registered plan because it formalises arrangements that would otherwise remain informal.

What is the difference between a parenting plan registered with the Family Advocate and one made a court order?

A plan registered with the Office of the Family Advocate is officially on record and enforceable through the Family Advocate process; a plan made an order of court carries the additional force of contempt-of-court proceedings for breach. Parents with a high-conflict separation, a history of domestic violence, or concerns about compliance should consider having the plan made an order of court rather than relying on Family Advocate registration alone.

Can the children have a say in the parenting plan?

Yes — children must be consulted during drafting on matters such as who they wish to live with, how much time they want with each parent, and where they want to spend special occasions. The level of input depends on age and maturity; older children’s views carry greater weight under section 7 of the Children’s Act.

How long does it take to set up a parenting plan?

An agreed plan can be finalised within weeks if parents cooperate and a mediator drafts it efficiently. A contested matter runs through the Family Advocate’s enquiry (typically several months from application to report) and, if unresolved, a contested court hearing — which can add six to twelve months or more depending on the court’s roster. The plan’s own reviews then continue for the life of the parenting arrangement.

What happens if one parent breaches the parenting plan?

The non-breaching parent may approach the Children’s Court (for care and contact breaches), the Maintenance Court (for financial breaches), or apply for contempt-of-court proceedings if the plan was made a court order. Penalties for the defaulting parent can include fines, garnishee orders, and in extreme cases jail time.

Do I need an attorney to set up a parenting plan?

Not strictly — parents can draft and sign a plan themselves and lodge it with the Family Advocate. In practice, an attorney or mediator is usually involved to ensure the plan complies with the prescribed form, covers the statutory minimums, and is drafted in language the court will accept — particularly if the plan is likely to be disputed or made an order of court. Poorly drafted plans often lead to future disputes and costly legal action.

If you want a family-law attorney to help draft or register your parenting plan, or to represent you in a contested Family Advocate enquiry, contact Burger Huyser Attorneys’ Family Law team on 011 888 0246 (Linden/Randburg head office) or at your nearest branch — Centurion 012 644 4990, Pretoria 012 471 5700, Sandton 011 253 3080, Bedfordview 011 201 7190, Alberton 011 439 3990, Roodepoort 011 668 0030, Midrand 010 022 4082. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is led in family law by Director Anna-Mi Nel, with qualified mediators on staff to support agreed-plan drafting.