Parental Responsibilities and Rights Agreement vs a Parenting Plan

Parental Responsibilities and Rights Agreement vs a Parenting Plan

Most people have throughout their life heard of a Parenting Plan, had one drafted for their own children, or heard about a family member having one for their children. However, very few people, in fact, a very small percentage of people have heard about a Parental Responsibilities and Rights Agreement. Most people are not even aware that such an agreement exists. For those who do know about such an agreement, they often confuse it with a Parenting Plan. This article serves to explain what a Parental Responsibilities and Rights Agreement is, what a Parenting Plan, the difference between such two agreements and the main similarities between them.

What are Parental Responsibilities and Rights?

In terms of Section 1 of the Children’s Act, 38 of 2005, these are Responsibilities and Rights relating to a child, which mean the Responsibilities and Rights to:

1. Care for a child;
2. Maintain contact with a child;
3. Act as guardian of a child;
4. Contribute to the maintenance of a child;

Any person who acts as a guardian of a child must:

1. Administer and safeguard the child’s property and property interests;
2. Assist or represent the child in administrative, contractual and other legal matters;
3. Give or refuse any consent required by law in respect of the child, including:
   • Consent to the child’s marriage;
   • Consent to the child’s adoption;
   • Consent to the child’s departure or removal from the Republic;
   • Consent to the child’s application for a passport; and
   • Consent to the alienation or encumbrance of any immovable property of the child.

What is a Parental Responsibilities and Rights Agreement?

This is an agreement whereby a mother of a child or any other person who has Parental Responsibilities and Rights in respect of a child enters into an agreement providing and consenting to the acquisition of such Parental Responsibilities and Rights by:

1. The biological father of a child who does not have Parental Responsibilities and Rights in respect of the child; or
2. Any other person having an interest in the care, well-being and development of the child (relevant for purposes of this article).

What is a Parenting Plan?

This is an agreement whereby co-holders of Parental Responsibilities and Rights in respect of a child(ren) agree on a plan setting out the exercise of their respective Responsibilities and Rights in respect of a child(ren).

A Parenting Plan, in terms of Section 33(3) of the Children’s Act 38 of 2005, may determine any matter in connection with Parental Responsibilities and Rights, including:

• Where and with whom the child is to live.
• The maintenance of the child.
• Contact between the child and:
• Any of the parties; and
• Any other person.
• The schooling and religious upbringing of the child.

An important factor to remember with regards to a Parenting Plan is that, when parties are preparing a Parenting Plan, the parties MUST seek the assistance of a Family Advocate, Social Worker or Psychologist or mediation through a Social Worker or any other suitably qualified person.

The difference between a Parental Responsibilities and Rights Agreement and a Parenting Plan

A Parental Responsibilities and Rights Agreement (governed by Section 22 of the Children’s Act 38 of 2005) is used to acquire Parental Responsibilities and Rights by way of someone who is already a holder of such Responsibilities and Rights, consenting to you obtaining such Responsibilities and Rights in respect of a child.

A Parenting Plan (governed by Section 33 of the Children’s Act 38 of 2005) on the other hand, is used to govern how Parental Responsibilities and Rights will be exercised by holders of such Responsibilities and Rights in respect of a child.

The main similarities between a Parental Responsibilities and Rights Agreement and a Parenting Plan

Both a Parental Responsibilities and Rights Agreement and a Parenting Plan:

1. Must be in writing and signed by the relevant parties.
2. May either be registered with a Family Advocate or be made an order of the court in order to take effect.
3. Must comply and be in the best interest of the child(ren) involved.
4. May be amended or terminated only by an order of the court on application by:
   • By the co-holders of Parental Responsibilities and Rights who are the parties to such agreements and/or plans.
   • By the child, acting with the leave of the court.
   • In the child’s interest, by any other person acting with the leave of the court.

Need a Parental Responsibilities and Rights Agreement or a Parenting Plan drafted? Contact us. We would be happy to assist!

Next week we will look at the rights of unmarried fathers. So many couples never get married, have children together and then separate. Often the one parent is denied access to their child(ren) when the parties separate. What does one do in such a position if you are an unmarried father? Look out for our next article dealing with this issue.