Parenting Plans in South Africa: Binding Agreements, Registration and Court Orders

Parents often tell a mediator, “We already have a parenting plan.” It is a reassuring sentence, but it can mean very different things. It may be an email exchange, an unsigned draft, a signed agreement, a plan registered with the Family Advocate, or a plan that a court has made an order. Each of these has a different legal effect, and the difference usually matters most at the moment a co-parenting arrangement comes under strain.

This guide explains the stages a parenting plan can pass through under the Children’s Act 38 of 2005, what each stage changes, and how to record an arrangement so that it works in everyday family life.

Why the terminology matters

Words such as “binding”, “enforceable” and “official” are often used as if they meant the same thing. They do not. A parent who believes a plan is a court order may expect the sheriff or the police to act when contact is refused, only to discover that the plan was never made an order. A parent who believes a signed plan can be changed by a quick WhatsApp message may later find that the other parent holds them to the written terms.

Understanding which stage a plan has reached helps parents know what they have agreed, who can change it and what can be done if it is not followed.

The four stages of a parenting plan

The four stages of a parenting plan, and what each one means

Stage	What it is	Who can change it	If it is not followed
Draft	A written proposal, often prepared by the mediator after the parents have discussed the detail	The parents, by further discussion	Nothing has been agreed yet
Signed plan	A written plan signed by both parents	The parents, in writing and signed	The other parent may need to approach a court
Registered with the Family Advocate	A signed plan registered under section 34 of the Children’s Act	The Family Advocate, on application by the parents	Registration alone does not make it a court order
Made an order of court	A signed plan that a court has made an order	Only a court	It is enforceable as a court order, including through contempt proceedings

1. The draft

A draft is the working document that records what the parents have discussed. In mediation, the mediator usually prepares it after the parents have worked through the detail together, so that each parent can read it carefully, ask questions and suggest changes. A draft is not yet an agreement.

2. The signed plan

Once both parents are satisfied with the content and sign it, the plan records their agreement about how they will share their parental responsibilities and rights. Section 34 of the Children’s Act requires a parenting plan to be in writing and signed by the parties. A signed plan carries real weight between the parents. It is not, however, a court order. If one parent does not keep to it, the other parent will generally need to approach a court for assistance.

3. Registration with the Family Advocate

Section 34 allows a signed parenting plan to be registered with a Family Advocate. The application must be made in the prescribed format, with a copy of the plan. Where the plan was prepared because the parents were experiencing difficulties in exercising their responsibilities and rights, the application must also include a statement from a family advocate, social worker or psychologist, or from the mediator who assisted the parents.

Registration gives the plan a formal status, and a registered plan may later be amended or terminated by the Family Advocate on application by the parents. Registration does not, however, turn the plan into a court order.

4. An order of court

A signed plan can also be made an order of court, for example when it is incorporated into a divorce order or made an order on application. Once that has happened, the plan is enforceable in the same way as any other court order. Persistent, wilful non-compliance can found contempt proceedings, and section 35 of the Children’s Act makes it an offence to refuse or prevent contact contrary to a court order. A plan made an order of court may be amended or terminated only by a court.

Sections 33 and 34 in plain language

Section 33 allows parents who share parental responsibilities and rights to agree on a parenting plan. Where they are experiencing difficulties in exercising those responsibilities and rights, they must first try to agree on a parenting plan before asking a court to intervene. In preparing the plan, they must seek the assistance of a family advocate, social worker or psychologist, or use mediation through a social worker or another suitably qualified person.

A plan may deal with any aspect of parental responsibilities and rights, including where and with whom the child will live, maintenance, contact, schooling and religious upbringing. Whatever it covers, it must comply with the best interests of the child standard in section 7 of the Act.

Section 34 then deals with formalities: the written and signed requirement, the two routes of registration and court order, the supporting documents, and who may amend or terminate the plan afterwards.

In practice: Karen Malan on getting it right

Karen Malan has mediated more than 400 matters across family and divorce, civil and commercial, and personal injury disputes. Asked what parents most often misunderstand, she draws a clear line between the stages.

“A draft Parenting Plan is a document that has been drafted by a qualified person (e.g. a mediator) after the parents had an opportunity in mediation to discuss and agree on the detail they want to include in their parenting plan.”

Karen Malan

“Should a party be in breach of the agreement, the aggrieved party can approach court … A court order is … immediately enforceable.”

Karen Malan

On registration, her message is direct:

“Registering a parenting plan with the Family Advocate does not make it a court order.”

Karen Malan

She is equally clear about the small errors that cause large problems later. Her checklist starts with the basics: the correct names and details of the parents and children, initials on every page and full signatures on the last page. Before a plan is made an order of court, the attorney should also check that the case number is correct.

Most of all, she warns against leaving important clauses to chance:

“Care and Contact clause – this clause needs to contain comprehensive detail regarding which parent is responsible for what and when. The chances that a new argument will start is very probable if you leave anything to chance.”

Karen Malan

What a well-drafted plan covers

The test of a good parenting plan is simple: could someone outside the family read it and know what should happen next week, next school holiday and next Christmas? Depending on the family, a plan will usually address:

• where the children live, and the routine for school terms;
• contact with each parent, including handover times and places;
• school holidays, public holidays, birthdays and special occasions;
• travel, including travel outside South Africa and passport arrangements;
• communication between the parents, and between each parent and the children;
• schooling, healthcare, religion and extramural activities;
• maintenance and the sharing of specific expenses;
• the role of grandparents and other family members (see our guide to extended-family involvement in parenting arrangements);
• how decisions will be made and how disagreements will be resolved; and
• when and how the plan will be reviewed.

Common execution mistakes

Many disputes about parenting plans are not really disputes about what was agreed. They come from how the agreement was recorded. The most common difficulties are:

• incorrect names, identity numbers or dates of birth;
• pages that are not initialled, or a plan signed by only one parent;
• vague words such as “reasonable contact” or “alternate holidays” with no dates or times;
• no agreed method for communicating changes; and
• informal variations that were agreed but never recorded.

Consider a hypothetical example. A plan says only that the parents will “share the December holidays”. In November, one parent books a coastal holiday for the first two weeks; the other has already planned to travel inland over Christmas. Neither has breached the plan, yet the conflict is immediate. A clause that names the dates, the handover arrangements, travel consent and a deadline for confirming plans would have prevented it.

Changing the plan as children grow

Karen describes a parenting plan as “a fluid document which must be updated as the needs and circumstances of parents and children change”. The arrangements that suit a toddler rarely suit a teenager. A move, a new partner, a new school or a change in work hours may all call for a review.

How a plan is changed depends on its stage. A signed plan should be amended in writing and signed by both parents. A registered plan can be amended by the Family Advocate on application by the parents. A plan made an order of court can be amended only by a court. Changes that are agreed informally and never recorded are a frequent source of later conflict, because each parent remembers them differently.

When the plan is not being followed

What can be done depends on the stage the plan has reached and on the nature of the problem.

• A signed plan that is not followed: the parents can return to mediation to resolve the issue or update the plan. If that fails, a parent may need to approach a court.
• A plan made an order of court: the order is directly enforceable, and contempt proceedings are available in serious cases.
• Day-to-day implementation problems: contested handovers, poor information-sharing or recurring holiday disputes are often better suited to parenting coordination, which helps parents implement an existing plan without returning to court.
• Maintenance disputes: these generally belong in the Maintenance Court.

When mediation should pause

Mediation is built around the parents’ own decisions, but the child’s best interests come first. If, during mediation, it appears that the proposed arrangement would not serve the child’s best interests, the mediator should raise the concern. In Karen’s words, the mediator can “pause by addressing the issue and/or withdraw from the mediation and report the matter to the necessary authorities should the children in the mediator’s opinion be in danger”.

The child’s voice

Children have a right to participate in decisions that affect them, in a manner appropriate to their age, maturity and stage of development. In practice, this is usually done through a child participation interview with a suitably qualified professional. Giving a child a voice does not mean giving the child the decision; the responsibility remains with the parents.

Frequently asked questions

Recording an arrangement that lasts

A parenting plan is only as strong as its wording and its formal status. Parents who understand the difference between a draft, a signed plan, a registered plan and a court order are better placed to choose the right route for their family, and to avoid the disputes that vague arrangements invite.

MV Inc. assists parents to mediate, record and review parenting arrangements before they are formalised. To discuss a new plan or the review of an existing one, request a confidential consultation or read more about our family mediation services.

This article is general information about parenting plans in South Africa and is not legal advice. The example used is hypothetical. Every family’s circumstances differ, and the appropriate route for formalising or amending a plan turns on those circumstances, so you should obtain advice on your own matter before acting.

MV Inc (Malan Vermeulen Incorporated) · Ground Floor, Quadrum 3, 50 Constantia Boulevard, Floracliffe, Johannesburg, 1709 · 010 980 5160 · [email protected]