Holiday contact: Basic principles
The festive season is fast approaching which can be a wonderful time of year, but can also be difficult time to navigate for families.
Where parents are divorced or separated the question of who gets which holiday, or what share of a holiday or special day, can be contentious.
As always when it comes to children, reasonableness is key. That being said, not all parents or their wishes are necessarily reasonable, and sometimes there is simply a deadlock.
Holiday contact is generally not an issue where there is a divorce or contact order in place which determines how holidays are to be shared between parents.
Even when there is a court order in place, it is possible for parents to agree alternate contact.
In the absence of a court order, parents can decide holiday contact by agreement.
Parents can of course divide and share holidays by mutual agreement. This agreement does not have to be in writing and can be informal. However, it is often useful to agree holiday contact in writing, whether that be by way of (for example) email or text, so that the agreement is easily referenced should there be confusion or clarification required in the future.
It is often a good idea to try schedule holiday contact in advance so that each parent knows where they stand and what arrangements they need to make with work.
Many parents annually alternate the first and last halves of each holiday to ensure fairness, but much depends on the age and maturity of the minor child and what is in their best interests.
Where there is no court order in place, or if the parents have difficulty agreeing contact, it may be beneficial for the parties to enter into a parenting plan. This is formal, written agreement, as opposed to the informal agreement referred to above.
The Children's Act, 38 of 2005 states that “the co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child. If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
A parenting plan is a broader agreement that encompasses more than holiday contact and can be a useful tool for parents to navigate the coparenting of their child. A parenting plan usually includes matters of residence, the maintenance of the child, contact between the child and any of the parties / any other person, and the education and religious upbringing of the child.
A parenting plan can be made an order of court at any stage, but this is not necessary if both parties comply with the parenting plan.
In concluding a parenting plan, parents can seek the assistance of an attorney, family advocate, social worker or psychologist, or mediation.
A child cannot be removed from South Africa without the consent of both guardians, which are most often both parents. Accordingly, both parents must consent to overseas travel.
If a parent unreasonably refuses to agree to overseas travel, it is possible to approach the courts for assistance.
What recourse do I have if I cannot agree contact to my child / children?
If there is a dispute about what contact is reasonable and fair, and this dispute cannot be readily resolved by discussion and/or mediation, the aggrieved parent can approach a competent court for the appropriate relief, including a declaration of rights.
However, where practicable, it is recommended that the court be used as a last resort and that parents make every effort to resolve their disputes before instituting litigation.