A parenting plan is written for the family as it exists on the day it is signed. Children grow older, schools change, work patterns change, and an arrangement that suited a four-year-old seldom suits a fourteen-year-old. Varying a parenting plan is the lawful route when the arrangement genuinely no longer works, and it is a route that depends heavily on one question: what legal status does the existing arrangement have?
That question decides almost everything that follows. Changing an agreement between parents is one thing. Changing an order of court is another. Parents who confuse the two often create a problem larger than the one they set out to solve.
This article explains how a parenting plan or care and contact order may lawfully be changed, what a court looks for before it disturbs a settled arrangement, and where the common mistakes lie.
When a parenting arrangement stops working, and why you cannot simply change it yourself
Parenting arrangements are not fixed until a child reaches majority. They can be changed where circumstances have changed and the existing arrangement is no longer appropriate or no longer serves the child’s best interests.
What a parent may not do is decide unilaterally that the old arrangement has fallen away. A parent who believes an order has become unsuitable should pursue the appropriate change rather than simply stop complying with it. Self-help is the single most common error in this area, and it carries real consequences. Our article on the consequences of ignoring a court order in children’s matters sets out what can follow when a parent takes that route.
Nor can parents treat an order as having changed simply because they have been following a different arrangement in practice. Where the terms of a court order are to be altered, the variation must be sought from the court.
Varying a parenting plan in South Africa: the legal framework
The Children’s Act 38 of 2005 governs parenting plans. The Department of Justice and Constitutional Development publishes the legislation and related court information. Three provisions do most of the work.
Amending a registered parenting plan under section 34(4)
Section 33 allows co-holders of parental responsibilities and rights to agree on a parenting plan determining how they will exercise those responsibilities and rights. The plan may deal with where and with whom the child is to live, the child’s maintenance, contact, and the child’s schooling and religious upbringing. Section 33(4) requires it to comply with the best interests standard in section 7. Section 34(1) requires it to be in writing and signed, after which it may be registered with a family advocate or made an order of court.
Where the plan was registered with a family advocate, section 34(4) provides that it may be amended or terminated by the family advocate, on application by the co-holders of parental responsibilities and rights who are parties to the plan. Amending a registered parenting plan by this route depends on the parents applying together. This is the least burdensome route to varying a parenting plan, and it is available only where the plan was registered rather than made an order.
Varying a plan that was made an order of court under section 34(5)
Where the plan was made an order of court, the position is stricter. Section 34(5) provides that it may be amended or terminated only by an order of court, on application by the co-holders who are parties to the plan, by the child acting with leave of the court, or in the child’s interest by any other person acting with leave of the court.
The practical consequence matters. Once a plan has become an order, agreement between the parents does not by itself change it. The agreement must be taken back to court and made an order in its amended form.
Varying a care and contact order in a divorce order
Where care and contact form part of a divorce order, section 8(1) of the Divorce Act 70 of 1979 applies. An order regarding the custody or guardianship of, or access to, a child may at any time be rescinded or varied by a court, and an access order may also be suspended, if the court finds that there is sufficient reason to do so. Section 8(2) allows a court other than the court that granted the order to deal with the matter in defined circumstances relating to domicile and consent to jurisdiction.
The Divorce Act still uses the older language of custody and access. Those expressions must be read together with the current concepts of care and contact under the Children’s Act. Care, contact and guardianship are three distinct concepts under section 18 of the Children’s Act, and they are not interchangeable. Guardianship carries decision-making powers, including consent to a child’s departure from the Republic and to a passport application, which care and contact do not.
Section 8(1) also contains a proviso. Where the Family Advocate has instituted an enquiry under the Mediation in Certain Divorce Matters Act 24 of 1987, the order is not to be rescinded, varied or suspended before the resulting report and recommendations have been considered by the court.
Forum matters, and choosing wrongly costs time and money. Not every variation follows the same procedural route. The correct forum depends on the existing order, the relief sought and the particular facts.
If you are unsure which of these three routes applies, a focused parenting plan consultation or review will establish it before costs are incurred.
What counts as a material change in circumstances
A material change in circumstances is not a rigid statutory checklist which, once ticked, produces a variation. It is better understood as the practical question a court will ask before varying a parenting plan: why should an arrangement previously considered appropriate now be disturbed?
The change must be meaningful enough to justify reconsidering the existing arrangement, viewed through the best interests standard. Section 7(1) of the Children’s Act lists the factors relevant to that standard, including the nature of the child’s relationship with each parent, the likely effect on the child of any change in circumstances, the practical difficulty and expense of contact, and the child’s age, maturity and stage of development.
Changes that may justify reconsideration, depending on the facts, include:
- the child growing older and his or her needs changing, including a very young child becoming ready for overnight contact;
- the start of primary or high school, or increased academic and extramural commitments, making the existing schedule impractical;
- a parent’s employment or shift pattern changing;
- a parent moving residence, or travel distances becoming impractical;
- changed medical, developmental or educational needs;
- repeated practical difficulties under a shared-care arrangement;
- concerns about the child’s safety or welfare; or
- an arrangement that worked when the order was granted no longer being workable years later.
What will generally not be persuasive on its own is ordinary inconvenience, a parent’s dislike of the existing arrangement, minor disagreements, a request for additional contact without any explanation of the benefit to the child, remarriage or a new partner, isolated incidents that do not show an ongoing concern, an attempt to punish the other parent, or a belief that a different arrangement would be fairer to a parent.
The question in each case is what effect the changed circumstances have on the child. Children’s matters are not determined according to what is fairest to each parent. The enquiry is directed at the child.
Changing the arrangement by agreement: what a consent variation must do
Where both parents are co-holders of parental responsibilities and rights and both agree, the process is considerably easier. It is still not complete until the change is properly recorded.
Start by identifying precisely which provision needs to change and why. Raise a specific, child-focused proposal rather than a general complaint that the arrangement does not work. If agreement is reached, reduce the amended terms to writing and formalise them.
Formalisation is the step parents skip. Whether the amended plan must be registered with a family advocate, made an order of court, or incorporated into an existing order depends on how the original was formalised. Amending a registered parenting plan follows the section 34(4) route. A plan that became an order follows section 34(5).
The risk of the informal arrangement is underestimated. Parents frequently agree by message to change contact and then follow the new arrangement for years without addressing the existing order. That creates real difficulty when the relationship later deteriorates and one parent insists on reverting to the original wording. An informal agreement does not vary a court order.
Mediation, the Family Advocate and the parenting coordinator
Section 33(2) requires co-holders experiencing difficulties in exercising their responsibilities and rights to first seek to agree on a parenting plan before seeking the intervention of a court. Section 33(5) contemplates the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person. Section 6(4)(a) directs that a conciliatory, problem-solving approach be followed and a confrontational approach avoided.
Where direct negotiation fails, family mediation services may be appropriate. Mediation can produce a workable agreement, but it does not produce an enforceable outcome on its own. The agreed terms still need to be registered or made an order of court to carry the status parents assume they have.
The Family Advocate may become involved where there is a genuine dispute about the child’s best interests or where the court requires investigation and recommendations. Under section 29(5)(a), a court may order that a report and recommendations of a family advocate, a social worker or another suitably qualified person be submitted to it.
Where a parenting coordinator has been appointed, the terms of the mandate must be read carefully. A parenting coordinator may assist with implementation disputes falling within that mandate, but should not be treated as having power to rewrite primary residence, guardianship or the substance of a court-ordered care and contact regime. Where the dispute concerns substance rather than implementation, agreement or a court order is what changes the arrangement.
Applying to court: forum, evidence and what the court weighs
Where agreement cannot be reached on a substantive change, an application to the appropriate court may be necessary. A variation of a court order is not granted merely because circumstances have changed. The enquiry remains centred on the best interests of the particular child, which section 9 of the Children’s Act confirms is of paramount importance in all matters concerning the care, protection and well-being of a child.
Varying a parenting plan through litigation is therefore an evidence-led exercise. Asserting that the arrangement has become unsatisfactory does not carry an application on its own.
The application should explain what the current arrangement is, what has changed since it was implemented, why it is no longer appropriate, and why the proposed variation better serves the child’s interests.
Before consulting an attorney, gather:
- the existing parenting plan, the divorce settlement agreement if applicable, and the divorce order and any later court orders;
- proof of whether the plan was registered with a family advocate, and any subsequent written amendments;
- relevant correspondence between the parents, and any attorney correspondence;
- a chronology of the difficulties experienced under the current arrangement, and a contact diary where contact itself is disputed;
- school calendars, reports or correspondence, and medical or therapeutic information where relevant;
- information about changed working hours, employment or residence relevant to the dispute; and
- previous Family Advocate reports, expert reports, mediation outcomes and any parenting coordinator directives.
The evidence must relate to the reason for the proposed change: what changed, when it changed, how it affects the child, and why the proposed arrangement would be better. Applications built largely on allegations about the other parent’s character, rather than evidence concerning the child, tend not to succeed.
If you are preparing for that conversation, arrange a consultation with Vermeulen Attorneys and we will identify which of these records carry weight in your circumstances.
How a child’s views are treated
Section 10 of the Children’s Act provides that every child of such an age, maturity and stage of development as to be able to participate in a matter concerning that child has the right to participate in an appropriate way, and that the views expressed by the child must be given due consideration.
Due consideration is not the same as control. A child’s preference is not determinative, and there is no rule that a child reaches a particular birthday and may then decide whether to have contact with a parent. The older and more mature the child, the greater the practical weight properly obtained views may carry, but those views are still weighed with all the other circumstances relevant to the child’s best interests.
Parents should avoid questioning children repeatedly about where they want to live, asking them to choose between their parents, preparing them for interviews with professionals, or using a child’s stated preference as a weapon in correspondence. Where a child’s views need to be placed before the court, that should happen through an appropriate child-sensitive process, which may include the Family Advocate or another suitably qualified professional. A child’s voice should be heard. The child should not be made responsible for deciding the litigation.
Timelines, and why the existing order still binds you
An agreed amendment can usually be dealt with efficiently. A contested application is different. Once papers have been issued and served, the other parent must be given an opportunity to oppose the relief. Further affidavits may follow, and the matter may require input from the Family Advocate or another suitably qualified professional. Court availability adds delay, and the more contentious the factual disputes, the less realistic a definite timeframe becomes.
One point deserves emphasis. Seeking a variation of a court order does not ordinarily suspend that order. Until the order has been varied, the existing order remains binding. A parent should not assume that launching an application permits immediate implementation of the proposed new arrangement. Where an interim position is genuinely necessary, appropriate interim relief may have to be sought. Parents who instead create their own interim solution frequently become exposed to allegations that they are acting contrary to the existing order.
Urgency is judged by the consequences of waiting. A children’s matter is not urgent merely because the parents are in serious disagreement. Genuine urgency may arise where there is credible evidence of an immediate threat to a child’s safety or welfare, an imminent removal of the child, an urgent medical or educational issue, or circumstances in which allowing the existing position to continue would expose the child to material prejudice. Urgency should also not be manufactured by delay. A parent who has known of a problem for months but approaches the court immediately before a school term may struggle to explain why it has suddenly become urgent.
Common mistakes parents make when varying a parenting plan
The recurring errors are consistent:
- deciding unilaterally that the existing order no longer applies and implementing a different arrangement;
- relying indefinitely on an informal agreement without formalising it;
- withholding contact because maintenance has not been paid;
- using contact as leverage in an unrelated dispute;
- involving children in adult negotiations or allowing a child to carry messages between parents;
- bringing an application on thin facts or isolated incidents; and
- assuming that a parenting coordinator can change the substance of the arrangement.
Relocation deserves a separate word. A proposed move is one of the most common triggers for a variation, and it is a distinct and heavier application in its own right. Relocation does not automatically entitle a parent to vary contact. Where the proposed move is out of South Africa, different considerations apply again, and our page on emigrating with minor children deals with that situation.
When to get attorneys involved
Legal advice is advisable where there is already an order of court; where one parent does not consent to the proposed change; where the change concerns primary residence, relocation or guardianship; where there are allegations concerning the child’s safety; where a child is refusing contact; where the parties disagree about the legal status of an informal arrangement; or where urgent relief may be required.
The practical message is straightforward. Where an existing arrangement genuinely no longer works, lawful mechanisms exist to change it. What a parent should not do is decide alone that the old arrangement has stopped applying.
Frequently Asked Questions
Can we change our parenting plan without going to court?
Sometimes. Where the plan was registered with a family advocate, section 34(4) of the Children’s Act allows amending a registered parenting plan through the family advocate, on application by both co-holders. Where the plan was made an order of court, section 34(5) requires an order of court. Varying a parenting plan that has become an order therefore cannot be achieved by agreement alone.
What if the other parent refuses to agree to any change?
The change cannot be imposed. Mediation or Family Advocate involvement may resolve the dispute. If it does not, an application to the appropriate court may be necessary, and the parent opposing the change must be given an opportunity to place his or her position before the court. The court then determines the issue according to the child’s best interests.
Does my child’s preference change the outcome?
A child’s views must be given due consideration under section 10 of the Children’s Act, having regard to age, maturity and stage of development. Those views are relevant but not determinative, and no particular age gives a child an absolute right to decide.
What counts as a material change in circumstances?
There is no closed list. A material change in circumstances is a change meaningful enough to justify reconsidering an arrangement previously considered appropriate, assessed against the best interests factors in section 7 of the Children’s Act. Ordinary inconvenience, a new partner or a preference for a different schedule will generally not be enough on their own.
Can I stop complying with the order while my application is pending?
No. Bringing an application does not ordinarily suspend the existing order. It remains binding until varied. Where an interim position is genuinely necessary, appropriate interim relief should be sought rather than implemented unilaterally.
Does a WhatsApp agreement change our court order?
No. An informal agreement does not vary a court order, however long it has been followed in practice. This creates real difficulty when one parent later insists on reverting to the original wording. Any agreed change should be formalised.
Which court deals with a care and contact order?
It depends on the existing order and the relief sought. A children’s court may adjudicate matters involving care of, or contact with, a child under section 45(1)(b) of the Children’s Act. The High Court sits as upper guardian of minor children. Where the arrangement forms part of a divorce order, section 8 of the Divorce Act applies and the divorce court is usually the starting point. Choosing the wrong forum costs time and money, so the point is worth confirming early.
Speak to us about your parenting plan
If your parenting plan or care and contact order no longer fits your child’s life, the first question is whether the change can be achieved by agreement or whether an application is required. That question is answerable in a single focused consultation.
Vermeulen Attorneys assists parents with parenting plan drafting, amendment and variation, and with related children’s matters. Book a parenting plan consultation or review through our contact page, and we will tell you which route applies to your arrangement and what it will require.
