Who should agree on a parenting plan?

Optional situation – section 33(1)

“(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.”

Mandatory situation – section 33(2)

“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.”

What must the parenting plan deal with according to 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.”

(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 the child must, bearing in mind the child’s age, maturity and stage of development, 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.

“(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.”

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.

Mandatory parenting plan – section 33(2)

“In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.”

(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.

(1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.

“Section 29 applies to an application in terms of subsection (2).”

The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

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Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much. The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.

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However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child. Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child. Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:

at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage. To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else. However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half. The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

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This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice, not related to family law, visit Private Legal.

Posted on 11 February 2025 by Telelaw