PARENTING PLANS IN TERMS OF THE CHILDREN’S ACT: SERVING THE BEST INTERESTS OF THE PARENT OR THE CHILD?

Abstract

The Children’s Act 38 of 2005 provides the legal basis for the reshaping of the exercise of parental responsibilities and rights. In previous case law the custody of a child was assigned to the parent who had been the primary caretaker during the subsistence of the marriage relationship, although the overriding factor remained the best interests of the child. This model has proved to be insufficient in order to promote the need for a child to be brought up in a stable family environment or, where this is not possible, in an environment that is as close as possible to a caring family environment; including the child’s right to maintain close contact with both parents. Facing this shortfall, the legislature adopted a “parenting-plan” model in terms of the Children’s Act, which attempts to help parents to set aside their differences and work out a plan which is in their child’s best interests. The parenting plan further attempts to help parents in exercising their parental responsibilities and rights over their children. The purpose of this article is to analyse this legal solution in an effort to ascertain whether it really promotes the best interests of the child, namely, promoting his/her right of growing up in a close relationship with both parents.