• by Samantha Rich
The primary residence of a minor child and the contact arrangements set out in a parenting plan, cannot be unilaterally altered by one parent/guardian, where that parent/guardian shares parental rights and responsibilities in respect of the minor child with another parent/guardian.
According to section 22(6)(a) of the Children’s Act 38 of 2005 a parental responsibilities and rights agreement, also known as a parenting plan, which is registered with the Family Advocate may be amended or terminated by the Family Advocate on application by a person who has parental responsibilities and rights in respect of the minor child; by the child acting with leave of the court; or someone acting in the child’s interest acting with leave of the court. According to section 22(6)(b) of the Children’s Act, a parenting plan that was made an order of court may only be amended or terminated on application by a person who has parental responsibilities and rights in respect of the child; by the child acting with leave of the court; or by a person acting in the child’s interest acting with leave of the court. According to section 22(7) of the Children’s Act, only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.
The Family Advocate or court will only vary the residence of the minor child/children or contact arrangements if there is a material change in circumstances. The Family Advocate makes recommendations to the court and does assessments when one parent/guardian wants a change of residency of the minor child or wants to alter the contact arrangements. There has to be just cause for varying the residence of the minor children or altering the contact arrangements. In determining whether the residence or contact arrangements should be varied, the essential issue is whether the best interests of the child will be served. In determining where the child’s primary residence will be, the court and Family Advocate will look at which parent/guardian will better be able to promote the minor child/children’s emotional, physical, intellectual and spiritual welfare.
Every child whom is of such an age, maturity and stage of development to be able to participate in decisions affecting them has the right to participate and have their opinions given due consideration.