Child Law
Parental Responsibilities and Rights Transition:
In light of South Africa's Children’s Act 38 of 2005, the previously used terms "custody and access" have been replaced with a more comprehensive terminology, "parental responsibilities and rights." This new terminology encompasses the duty to provide care for the children and the obligation and entitlement to maintain contact with them.
In situations where parents are not married to each other, issues surrounding parental responsibilities and rights may emerge. An agreement delineating these responsibilities and rights can be established, provided that certain procedures outlined in the Act are adhered to.
If disputes arise regarding the execution of the agreed parental responsibilities and rights, parents may, either independently or with the aid of the family advocate, formulate a parenting plan. This plan is meant to clarify each parent's responsibilities and rights. For legal recognition, the parenting plan needs to be registered with the family advocate and/or be sanctioned by the court.
Parental Responsibilities and Rights Agreements:
Sections 19 and 20 of the Act assert that both parents share equal responsibilities and rights concerning their children. Upon separation, it is imperative for parents to decide which parent the children will live with and what the contact rights of the other parent will be. Even after divorce, both parents retain full capacity to care for their children.
Nevertheless, a scenario may arise where the parents of a child or children were never married, and a question of paternity emerges, leading to a dispute regarding parental responsibilities and rights.
Section 22(1) of the Act allows for the mother of a child or another person with parental responsibilities and rights to enter into an agreement with either the biological father (who lacks such rights and responsibilities) or any other person interested in the child's care, well-being, and development, as per the stipulations in the agreement.
Section 22(2) specifies that the mother or other person can only confer those parental responsibilities and rights that they possess at the time the agreement is concluded. Section 22(3) mandates that the agreement must adhere to a prescribed format and contain specific details, while Section 22(4) states that a Parental Responsibilities and Rights (PRR) agreement will only take effect if registered with the family advocate or sanctioned by the relevant court.
Should parties finalize a PRR agreement without the intervention of a family advocate, social worker, or psychologist, the PRR agreement will not be activated until registered with the family advocate or approved by the High Court, a divorce court, or a children’s court, upon application by the concerned parties.
Before registration or court approval, Section 22(5) necessitates that the family advocate or the court must be convinced that the agreement serves the child's best interests.
Parenting Plans:
Sections 33 and 34 of the Act introduce the concept of 'parenting plans.' These plans, necessitated by either voluntary agreement or mandatory requirement due to disputes, are to be formulated by parents, legal practitioners, social workers, psychologists, or other qualified individuals, in accordance with the Act.
A parenting plan, although not explicitly defined in the Act, can be interpreted as a written agreement between co-holders of parental responsibilities and rights, meticulously outlining their respective duties and rights regarding care, contact, guardianship, and maintenance of the child.
Section 33 of the Act outlines two circumstances under which a parenting plan is enacted - the optional situation and the mandatory situation. The optional situation applies when parties desire a structured parenting plan without any intention of court involvement, while the mandatory situation applies when parties, facing difficulties in exercising their responsibilities and rights, are advised to agree on a parenting plan before resorting to court intervention.
The contents of the parenting plan can vary but must address certain key aspects concerning parental responsibilities and rights, such as living arrangements, child maintenance, contact rights, schooling, and religious upbringing of the child.
Additionally, children, based on their age, maturity, and developmental stage, must be consulted during the development of the parenting plan and informed of its contents once agreed upon, as per Regulation 11.
Section 34 outlines the formalities required for a parenting plan to be registered with the family advocate or approved by the court. Once a parenting plan is formalized, it must adhere to the child's best interest standard as outlined in Section 7 of the Act.
Court Approval of Parenting Plans:
Should parents reach a consensus on a proposed parenting plan, the court is likely to approve it. However, in the absence of agreement, the court will decide on a parenting plan after a hearing or trial, ensuring that the plan caters to the child's best interests.
Enforcement of the Parenting Plan:
Post court approval, both parents are required to comply with the parenting plan. For instance, a parent cannot deny the other parent access to the child due to outstanding child support.
Non-compliance with the parenting plan may result in a contempt of court finding, with possible repercussions including jail time, fines, or other forms of punishment.
