Legal Options If a Parent Doesn’t Follow a Parenting Plan

Navigating your parental responsibilities and rights after a separation or divorce can be challenging. However, it becomes even more taxing when one parent does not comply with the agreed-upon arrangements. In South Africa, what many people refer to as a custody agreement is legally known as a parenting plan, and what is commonly called “child custody” is formally referred to as care and contact under the Children’s Act 38 of 2005.

When a parenting plan or court order is in place, both parents are legally bound to follow its terms. If the other parent disregards these provisions, you have the right to take legal action to enforce the agreement and protect your rights as a parent.

Resolving a Dispute About A Parenting Plan

1. Communicate and Attempt Resolution

Before taking legal action, consider discussing the issue with the other parent to understand their reasons for not complying. Sometimes, misunderstandings or logistical issues can be resolved through open communication about the arrangement.

If direct communication is not effective, mediation with a neutral third party may be a useful step. Mediation is encouraged under the Children’s Act, as it allows parents to resolve disputes amicably while keeping the child’s best interests at heart.

2. Seek Assistance from the Family Advocate’s Office

If informal discussions fail, you can lodge a complaint with the Family Advocate’s Office. The Family Advocate is a court-appointed official who investigates disputes regarding care and contact and makes recommendations to the court based on the child’s best interests.

The Family Advocate cannot enforce orders but may assist in resolving disputes without resorting to litigation. Their intervention can help facilitate discussions and ensure that both parents adhere to their legal responsibilities.

3. Apply for Contempt of Court Proceedings

If a parent continues to disregard the parenting plan despite intervention, you can apply to court to hold them in contempt. However, for contempt proceedings to be successful, the parenting plan must be made an order of the court. If the plan is not a court order, contempt is not a viable legal remedy. It is always advisable to have your parenting plan made an order of the court to improve its enforceability.

To prove contempt, you must demonstrate that:

• A valid court order exists.
• The other party was aware of the order.
• They deliberately failed to comply with it.

If found guilty of contempt, the court may impose fines or in severe cases, imprisonment. However, the courts generally favour corrective measures that compel compliance rather than punishment. 

4. Request a Variation of the Parenting Plan

Repeated violations of the parenting plan may indicate that changes are necessary. If the existing arrangement is no longer in the child’s best interests, you can apply to the court for a variation of the parenting plan.

To succeed in modifying a parenting plan, you must provide evidence that changes are necessary for the child’s well-being. This may include documented violations, messages or witness testimonies that support your claims.

5. Lay Criminal Charges in Severe Cases

Under Section 35 of the Children’s Act, a parent can be held criminally liable if they infringe upon the parental responsibilities and rights of the other. This means that a parent who unlawfully denies the other parent their legal rights to care, contact, guardianship or maintenance could face criminal charges. Importantly, Section 35 applies regardless of whether or not a parenting plan has been made an order of the court. The courts take these violations seriously and could impose penalties to ensure compliance with the law.

If you believe your parental responsibilities and rights are being unlawfully withheld, you may approach the relevant legal authorities to initiate criminal proceedings. While the South African Police Service (SAPS) can intervene in certain cases, courts typically prefer resolving these disputes through civil litigation rather than criminal prosecution, unless there is a risk to the child’s safety. 

Final Thoughts

Enforcing a parenting plan can be legally complex and emotionally draining, but you don’t have to face it alone. At Cawood Attorneys, we are committed to safeguarding your parental responsibilities and rights, while ensuring that your child’s best interests remain the priority. Contact us today for expert legal advice and representation.