PARENTING PLANS

A parenting plan in South Africa is a written agreement between co-holders of parental responsibilities and rights, drawn up under the Children’s Act 38 of 2005, that records how a child will be cared for, contacted, maintained, schooled and brought up after separation or divorce. It must cover where and with whom the child is to live, maintenance, contact, and the child’s schooling and religious upbringing, and must satisfy the best-interests-of-the-child standard. Parents who cannot agree must first seek the assistance of the Office of the Family Advocate, a social worker or psychologist, or attend mediation before approaching the court — a prerequisite the High Court has enforced through cost orders against litigants who skip it.

What a Parenting Plan Is

A parenting plan is a written agreement between co-holders of parental responsibilities and rights, recording how a child will be cared for, contacted, schooled and brought up after separation or divorce. It is governed by the Children’s Act 38 of 2005 and must satisfy the best-interests-of-the-child principle. It is a practical manual that another parent, a court officer, or a Parenting Coordinator can read and follow. Most parents will draft a plan, sign it, and abide by it without going back to court; a smaller group — typically those in high-conflict separations or domestic violence cases — need the additional accountability of a court order.

The Statutory Framework

Section 33 of the Children’s Act 38 of 2005 deals with parenting plans as the prescribed method for co-holders who experience difficulties in exercising their responsibilities and rights. Plans must be continually reviewed — typically every six months to two years. Only three categories may approach the court to amend or terminate a parenting plan: the co-holders of parental responsibilities and rights; the child; or a person acting in the child’s interests.

Practical takeaway: Schedule the next review on the cover page so neither parent can claim the plan has “lapsed” simply because circumstances have shifted.

Conciliation Before Litigation

Before approaching the court, co-holders who cannot agree must first seek the assistance of the Office of the Family Advocate, a social worker or psychologist, or attend mediation. This is not optional — the High Court has used cost orders against litigants who skip the conciliation step. Where litigation is win-lose, mediation is usually faster and cheaper. If agreement is reached, the parties can reduce it to a parenting plan, register it with the Family Advocate, or have it made an order of court.

What the Family Advocate Does and Does Not Do

The Family Advocate assists the parties to reach agreement on disputed issues and, if they cannot, evaluates the parties’ circumstances and recommends a course to the court in the child’s best interests. The inquiry involves interviewing the parties and the children, normally assisted by a Family Counsellor, so the child does not have to appear in court.

The Family Advocate’s role has sharp limits:

• It cannot become involved in any matter already finalised by the court, cannot be subpoenaed, and cannot act as legal representative for either litigant.
• The recommendation is not enforceable on its own — it becomes binding only when incorporated in a court order.
• Services are free of charge, but parties may pay for additional expert reports where critical.
• The Office of the Chief Advocate handles 40–50 cases of child abduction annually.

Drafting the Plan: What Goes In It

The table below expands the four mandatory topics into the operational blocks a well-drafted plan addresses daily.

Block	What to decide	Why it matters
Care and residence	Term-time schedule, holidays, special days	Defines the child’s daily life
Contact and hand-overs	Where, when, what counts as late	Reduces conflict at the moment of highest tension
Communication	Calls, video calls, frequency, child-centred rules	Keeps both parents informed without becoming a tool for conflict
Schooling	Homework rules, parent-teacher meetings, costs	The most common source of joint-decision friction
Medical	Routine care, emergencies, chronic medication, medical aid card	Defines who decides what and when
Travel	Local notice, international consent, passports	Required for any departure from South Africa
Dispute resolution	Direct talk → mediator/PC → court, with timelines	Keeps small disagreements from escalating
Review	Annual or biannual review date	The plan must evolve as the child grows

Involving the Child

The Children’s Act requires that children be consulted during drafting so they can give input on who they wish to live with, how much time they spend with each parent, and where they spend special occasions. The weight given to the child’s views depends on age and maturity. The Family Counsellor interviews the child in a less formal setting than a courtroom. Younger children tolerate shorter, more frequent exchanges; teenagers can handle 50/50 splits.

Time-Sharing Schedules by Age

Child’s age	Pattern courts tend to support	Rationale
0–3 years	Short, frequent contact; routine-led	Predictability and proximity to the primary caregiver
4–7 years	Introduce overnights; 2-2-3 or 2-2-5-5 ramps	Builds tolerance for longer blocks as the child matures
8–12 years	Week-on/week-off or 5-2 with mid-week contact	Matches school rhythm and growing independence
13+ years	Greater voice for the child	Courts value the child’s view at this age

There is no single correct schedule; the right one depends on the child’s age, the parents’ work, and the school catchment area.

Guardianship and Decision-Making

Guardianship covers the major decisions: school choice, non-routine medical treatment, passports and departure from South Africa, religious rites, and relocation. Day-to-day decisions are made by the parent in whose care the child is at the time. Where parents cannot agree, the typical escalation chain is direct discussion → mediator → Parenting Coordinator → court. Where one parent has been the primary caregiver, the plan should preserve that pattern initially, then step up contact with the secondary parent as the child adapts.

Registering with the Family Advocate vs Making It a Court Order

Route	Effect	When it fits
Self-administered written agreement	Recorded, signed by both parents; no external registration	Lower-conflict parents wanting clarity without state involvement
Registered with the Office of the Family Advocate	Same legal effect as a court order; can be amended by re-applying	Parents who want the plan officially recorded without going to court
Made an order of the Children’s Court or High Court	Breach can trigger compliance applications or contempt of court	High-conflict separations, domestic violence cases, or where enforceability matters

Many parents register the plan and seek a consent order at the same time, so they have both the Family Advocate’s record and a court order they can enforce. Once a plan is made an order of court, breach may lead to contempt of court proceedings.

Varying or Terminating the Plan

The parties may amend or terminate the plan on application. If the plan was registered at the Family Advocate, the application is made directly to that office. Variation is appropriate when circumstances change materially: a parent’s relocation, a school change, a shift in work schedule, a child’s evolving needs, or a new safety concern. Keep changes narrow and child-centred, and record them in writing.

Enforcement: When the Other Parent Ignores the Plan

If the plan is a court order and the other parent is not complying, the available routes are compliance applications or contempt of court proceedings. If a Parenting Coordinator has been appointed and the dispute falls within their mandate, use the PC first. If the plan is registered with the Family Advocate but not made a court order, convert it into a consent order first, since registration alone does not carry contempt-of-court consequences.

Special Cases: Travel, Relocation, Domestic Violence

Situation	What the plan should address
International travel	Consent of both guardians; notice (commonly 45 days); itinerary and passport custody protocol
Relocation	Best-interests test across borders; usually requires agreement or a court application
Domestic violence	Court order rather than registration; protected hand-over venues; no-disparagement and sobriety clauses
Child abduction risk	Passport protocols; itinerary alerts; the Office of the Chief Advocate handles 40–50 abductions annually

Parenting Coordination: Optional Layer for High-Conflict Cases

A Parenting Coordinator (PC) is a neutral professional (typically a lawyer, psychologist or social worker) appointed by agreement or court order. The PC implements the parenting plan and decides minor implementation disputes within a defined mandate; major issues (school choice, relocation) still go back to court. The PC order should specify scope, process, review/appeal route, and fees. The practical test is whether the same small disputes keep finding their way back into formal correspondence — if they do, a PC’s mandate typically pays for itself within a year.

Working a parenting plan through in Gauteng? Burger Huyser Attorneys’ Family Law department, led by Director Anna-Mi Nel, handles parenting plan drafting, Family Advocate engagement, registration and conversion to a court order from the firm’s head office in Linden, Randburg (49 First Avenue, 011 888 0246), with consultations across the firm’s Gauteng branches in Bedfordview, Sandton, Roodepoort, Centurion, Pretoria (Menlyn), Alberton and Midrand. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified) and is a Gauteng Family Law Forum member. Call 011 888 0246.

Frequently Asked Questions

Is a parenting plan legally binding in South Africa?

A parenting plan becomes binding either by being registered with the Office of the Family Advocate (which gives it the same legal effect as a court order) or by being made an order of the Children’s Court or High Court. Breach of a court-ordered plan may lead to contempt of court proceedings.

Do I have to go to court to get a parenting plan?

Not necessarily. The Children’s Act requires co-holders who cannot agree to first seek assistance from the Office of the Family Advocate, a social worker or psychologist, or mediation, before approaching the court. The Family Advocate’s services are free of charge.

Does a child have a say in the parenting plan?

Yes. The Children’s Act requires that children be consulted during drafting so they can give input on who they live with, how much time they spend with each parent, and where they spend special occasions. The weight given to the child’s views depends on age and maturity.

Can a parenting plan be changed after it is signed?

Yes. The parties may amend or terminate the plan on application; if it was registered with the Family Advocate, the application is made directly to that office and does not need to go back to court. Variation is appropriate when circumstances change materially.

What happens if the other parent ignores the parenting plan?

If the plan is a court order, the available remedies are compliance applications or contempt of court proceedings. If a Parenting Coordinator has been appointed, refer the dispute to them first where it falls within their mandate.

What does a parenting plan need to cover at minimum?

Under the Children’s Act, a parenting plan must include where and with whom the child is to live; the maintenance of the child; contact between the child and any other person; and the schooling and religious upbringing of the child.