What is a parenting plan?

A parenting plan is a written agreement between people who share parental responsibilities and rights, setting out how they will actually exercise them day to day. It is provided for in the Children's Act 38 of 2005, and it is the main practical tool separated parents have for avoiding an argument every second week.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

Two parents who agree on everything can draw one up voluntarily. Parents who are in dispute are expected to try. Where co-holders of parental responsibilities and rights are experiencing difficulties, the Children's Act requires them to first seek to agree on a parenting plan before approaching a court, and to do so with the assistance of the Office of the Family Advocate, a social worker or a psychologist, or through mediation by a suitably qualified person.

That requirement is not bureaucracy. Court is slow, expensive and adversarial, and a plan the two of you built is far more likely to survive contact with real life than one imposed on you.

What goes in a parenting plan

There is no fixed template, and the point is to write down whatever the two of you actually argue about. A useful plan usually covers:

• Where the child lives, described as primary residence or as a shared care arrangement, with the actual schedule.
• Contact, set out specifically. Which weekends, what times, who fetches and who returns, and where the handover happens.
• School holidays and public holidays, including how long holidays are split and how alternating years work.
• Birthdays, Christmas, Eid, Diwali, Easter, Mother's Day and Father's Day, whichever apply to your family.
• Schooling, including which school, who attends parent evenings and sports, who pays for what, and how a change of school is decided.
• Healthcare, including medical aid, who takes the child to appointments, who may consent to treatment, and how you notify each other in an emergency.
• Religious and cultural upbringing.
• Maintenance contributions, and who pays for extras such as school trips, braces or extramurals.
• Communication between the parents, including the preferred channel and expected response time.
• Communication between the child and the absent parent, such as phone or video calls, and when they happen.
• Travel, including consent for domestic and international travel, passports, and notice periods.
• Relocation, meaning what happens if one of you wants to move to another city or country.
• Introducing new partners, if that is a live issue.
• How you resolve disputes, usually mediation before litigation.
• How the plan gets reviewed, for example annually or when the child changes school phase.

Be specific about times and places. "Reasonable contact" is the phrase that generates the most arguments in South African family law. "Every second weekend from Friday 17:00 to Sunday 17:00, collected from and returned to the child's school or the mother's home" is what a plan should look like.

A worked example

This example is illustrative. Take a made-up family. Refilwe and Daniel have separated. Their daughter Ona is six and in Grade R. They live twenty minutes apart. Their first attempt at an arrangement was a message saying Daniel would "see Ona whenever it suits", and within two months every weekend had become a negotiation.

With a mediator, over two sessions, they write a plan. Ona's primary residence is with Refilwe. Daniel has Ona every second weekend from Friday after school to Monday morning drop off, and every Wednesday from after school to 18:30. Holidays are split in half, with the changeover at midday on the middle Saturday, alternating who has the first half each year. Ona spends Christmas morning with whichever parent had the first half of the holiday, and the afternoon with the other. Daniel pays the school fees directly and Refilwe pays aftercare, with a monthly contribution from Daniel dealt with separately by a Maintenance Court order. Either parent may take Ona within South Africa on notice of seven days, and international travel needs written consent thirty days ahead. They agree to a WhatsApp group used only for Ona's logistics, with replies within twenty four hours. They will review the plan when Ona starts Grade 1, and any dispute goes to the same mediator before either of them approaches a court.

They sign it and register it with the Family Advocate. The example is not a template for every family, but notice what changed: every clause has a day, a time and a place.

What the court weighs

If a plan ends up before a court, or the Family Advocate is asked to consider it, the question is whether it serves the child's best interests. In plain words, that means looking at the child's relationship with each parent, each parent's ability and willingness to meet the child's needs, the effect of any change on the child, the practical difficulty of the contact arrangements, the child's age, background and stage of development, the need to keep the child safe from harm, and the child's own views given appropriate weight. A plan that reads as a scorecard between the parents rather than a week in the life of the child is the plan that gets sent back.

The child's voice

The Children's Act requires that the child be consulted, and be given an opportunity to express a view, taking into account the child's age, maturity and stage of development. That does not mean asking a nine year old to choose a parent. It means the plan should take account of the child's own life, their friends, their sport, their sleep and their schoolwork.

Everything in the plan must also be consistent with the best interests of the child, which is the paramount standard. A plan that suits both parents but wrecks the child's week will not be registered or made an order.

How to put one in place

Do it yourselves. If you agree, write it down, both sign it, and date it. A written signed plan is already better than nothing, because it removes the "you never said that" argument.

Use the Family Advocate. The Office of the Family Advocate assists parents to reach agreement and can register a parenting plan. It costs nothing. Phone or visit the office covering your area and ask about the process.

Use a mediator. A social worker, psychologist or accredited family mediator can help you work through the difficult clauses. Private mediation is not free, but it is usually far cheaper than each of you instructing an attorney.

Attach it to a divorce. In a divorce, the parenting plan is normally incorporated into the settlement agreement and made an order of court along with the decree.

A realistic timeline

Two cooperative parents can draft and sign a plan in an afternoon. Mediation typically takes two to four sessions over a few weeks. The Family Advocate's process depends on the office's workload, and where the Family Advocate has to interview the parents and the child it can take some months. Making a plan an order of court in a divorce happens on the day the decree is granted. A standalone application to make a plan an order of court follows that court's roll. During any of these waits, an interim written arrangement, even a signed one page note, is better than nothing.

Registering it, or making it an order

An unregistered plan is a contract between two parents. It is useful, but if one parent simply ignores it, you have limited immediate recourse.

You have two options for giving it teeth:

• Register it with the family advocate. This gives the plan formal status.
• Make it an order of court. Once it is a court order, breaching it is contempt of court and can be enforced.

Where the plan was prepared because of a dispute, or where it is likely to be tested, making it an order of court is generally the safer choice. Speak to the Family Advocate or an attorney about which route suits your situation.

Common mistakes

Vague contact clauses. "Reasonable contact" and "as agreed between the parties" are the two phrases most likely to bring you back to mediation within a year.

No handover detail. Say where, when and who. Handovers at a school or a neutral public place reduce conflict.

Using the plan to settle scores. Clauses about a new partner's behaviour or a parent's past are rarely enforceable and always inflame.

Tying contact to money. A plan that makes weekends conditional on payment will not be registered and will not be made an order.

Never reviewing it. Children change. Build a review date in and use it.

Changing it later

A plan that is registered or made an order cannot simply be rewritten over WhatsApp. Depending on how it was put in place, an amendment normally has to be registered in the same way or made an order of court. A court can also amend or terminate a plan where that is in the child's best interests.

Children's needs change. A schedule that worked for a toddler rarely works for a fifteen year old with a Saturday job. Build a review date into the plan and revisit it properly rather than drifting into an informal arrangement neither of you can enforce.

What to do this week

1. Write down the current arrangement as it actually operates, then mark every point where the two of you disagree.
2. Draft your version of a plan using the list above, with real days, times and places.
3. Phone the Office of the Family Advocate for your area and ask about mediation and registration.
4. If there is any safety concern, deal with it first through a protection order, which is free at any Magistrates' Court.
5. If money for the child is a separate problem, open a file at the Maintenance Court, which is also free.

A few practical points

Keep the tone neutral. The plan will be read by teachers, doctors, grandparents and eventually by your child.

Do not link contact to maintenance. They are separate legal duties, and a clause that ties them together is a clause a court will not like. See how child maintenance is calculated.

Do not write in a threat. A plan is a working document for two people who will be co-parenting for years, not a way to win an argument that ended a relationship. If you cannot afford a mediator, the Family Advocate is free, and Legal Aid South Africa on 0800 110 110 takes on some children's matters subject to a means test.