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Access To Children

The parent who does not get custody will usually still want to see their children. There therefore needs to be an agreement about when, where and how this parent will have access to the children. If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.

Parenting Plans

Section 33 of the Children’s Act 38 of 2005 makes provision for Parenting Plans. Parenting Plans are now often being used in the High Court in Custody or Contact disputes although the term “Parenting Plan” may not be used. We strongly suggest that parents of children born out of wedlock enter into a Parenting Plan and have it made an Order of Court.

What is a Parenting Plan? 

A Parenting Plan is an order issued by a court, and which becomes endorsed by the Family Advocate in one of the following legal matters:

  • Divorce (Dissolution of Marriage)
  • Separation (When parents are legally separated)
  • Paternity (Request for a parenting plan after paternity has been settled)
  • Change of child custody (When custody has been modified)
  • Request for child custody by a non-parent (Traditional extended family non-parental custody. e.g. grandparents)

What needs to be recorded? 

  • Which parent the child will live with;
  • The amount of time the child will spend with each parent;
  • How child support will be paid, and by whom
  • How parents will make major decisions about the child; and
  • How the parents will work out major disagreements.

Guiding principles of Parenting Plans for parents:

Co-parenting means that the children spend a significant amount of  time with each parent. It also means that the tasks of child raising, not just the costs, are shared by both parents. All major decisions concerning school, health and related issues are made jointly. Both parents engage with teachers and doctors and look after the wellbeing of the children. 

Principles of Co-Parenting:

Autonomy

  • Respect
  • Shared Responsibility
  • Cooperation
  • Privacy
  • Direct communication
  • Retreat from intimacy

The Ten Commandments of Co-Parenting: 

  • Resolve the conflict without putting the kids in the middle
  • Treat the other parent with respect
  • Observe the appropriate boundaries
  • Communicate regularly with the other parent
  • Demonstrate positive conflict resolution
  • Share with your co-parent what you need from him/her to do a good job of parenting
  • Don’t allow all of the parenting tasks to fall to one parent
  • Be consistent- to the extent possible- in discipline, feeding and caring for your child
  • Help your children to recognize the other parent with appropriate gifts and or cards
  • Don’t punish your in-laws by keeping your kids from them after divorce

When will a court approve my Parenting Plan?

If the parents agree on a proposed Parenting Plan, the court will usually approve it. If the parents do not agree, the court will decide upon a Parenting Plan after a hearing or trial. The court considers many aspects before reaching a decision, but the Interests of the child(ren) is the most important factor of all. 

Enforcement of the Parenting Plan 

Once the court signs a Parenting Plan, both parents must abide by it. For example, you may not refuse to allow the other parent to see the child just because that parent has not paid child support.

If the other parent does not allow you to see the child when you have the right to do so, the other parent may be found in contempt of court. If a parent is found in contempt, the court could order imprisonment, fines, or some other type of punishment.

How can I change a Permanent Parenting Plan? 

It is not easy to change a Parenting Plan after it is made an order of court. Usually, it may be changed if both parents agree to the change(s). If the parents do not agree, the court may make major changes, such as whom the child lives with, this is usually done in cooperation with the Family Advocate and a facilitator. 

If the parents do not agree on the proposed change(s), one of these things must have occurred before the court will order a change in where the child lives:

  • The child has gone to live with one parent for an extended period of time with permission of the other parent.
  • The parent who does not want the change has been held in contempt of court, or that parent has been convicted of interfering with the other parent’s time with the child.
  • The child’s present life with a parent has been shown to be physically or emotionally harmful.

You may ask to change your parenting plan through your attorney, on your own through the family courts, but remember that whatever changes you make, the court must find them to be in the children’s best interest.

What if a parent wants to move with the child? 

All parenting plans must state what will happen if one of the parents wants to move (relocate) with the child. The law requires that the remaining parent grant the "moving parent" written permission for their child to move with him or her. The notice gives the other parent a chance to object to the move and to ask the court to change the existing Parenting Plan.