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Parent Plan

Where a marriage or relationship has broken down and the parties involved are the biological parents of minor children, it is highly recommended that a Parenting Plan be entered into.

A Parenting Plan is a written document which sets out the specific rights and obligations which parents have to and in respect of their minor child/children. Where parents have children who are born within a marriage relationship, both parents automatically have rights of co-guardianship and are regarded as the co-holders of parental responsibilities and rights in respect of that child.

Where parents who are not married have children, the unmarried father only acquires the rights of co-guardianship and shared parental responsibilities and rights if certain provisions are met. In terms of Section 21 of the Children’s Act 38 of 2005, these provisions are as follows:

  1. if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
  2. if he, regardless of whether he has lived or is living with the mother –
    1. consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
    2. contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
    3. contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

If an unmarried father meets these provisions and qualifies for these parental responsibilities and rights, it is important that his specific rights and obligations are contained in a Parental Rights and Responsibilities Agreement and are made an Order of Court.

In terms of a divorce, a Parenting Plan often forms part of the divorce settlement itself and sets out important aspects relating to access and the like which may assist the parties in avoiding difficulties after the divorce has been granted.

In order for a Parenting Plan to be made an Order of Court, it needs to be endorsed by the Family Advocate’s Offices so as to ensure that what is reflected in the agreement is in the best interests of the minor child.

It is important that these Plans and Agreements are properly drafted for the specific need of the child/children concerned.

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