Divorce and Parenting Plans

The Children’s Act offers parenting plans as a method to regulate and assist parents to agree how to exercise their parental responsibilities and rights.

Section 33(1) of the Children’s Act provides that co-holders of parental rights and responsibilities may agree on a parenting plan that sets out the method and mode of how each parent will exercise his/her rights over the children. Parenting Plans must comply with the best interests of the child standard.

It frequently happens that one parent will experience difficulties in exercising his/her parental rights, with the other parent deliberately blocking contact or frustrating it where no parenting plan exist or where a court order was made years ago that did not keep track or became outdated with the changes in our family law over the years. Where parents do struggle or where they experience difficulties to exercise these rights, mediation in terms of the Children’s Act is a prerequisite. The Act stipulates that an aggrieved parent must first seek the assistance of the Family Advocate, social worker or psychologist. Alternatively they must go to mediation facilitated by a social worker or other suitably qualified person.

The Children’s Act discourages parents from approaching the court as a first resort when they experience difficulties in exercising their rights and responsibilities.  The Act use the word “must” in section 33(5) which means that parties’ are compelled to refer to seek assistance or mediation prior to embarking on court action. The Act also lays down certain guidelines concerning parenting plans, for example that it must be in writing and that it must be registered with a Family Advocate Office or made an order of court. To register a parenting plan at the office of the Family Advocate a prescribed form must be used.

Once a parenting plan is in place it may be amended, suspended or terminated. Where a plan was registered at the office of the Family Advocate the parties must apply to the Family Advocate Office to amend, suspend or terminate the plan and in the event that it was made an order of court an application should be made to court to vary the plan.

One must distinguish between Parental Responsibilities and Rights Agreements (PRR) made in terms of section 22 and Parenting Plans in terms of section 33 of the Act. PRR plans are usually entered into where a mother or other person comes to an agreement with the biological father of the child and encompass an agreement with a party that did not have rights in terms of section 21.  Such an agreement confers rights and the agreement is typically between unmarried parents.

Parenting Plans on the other hand are usually entered into by co-holders of PRR Plans, the agreement delineates existing rights and an attempt to agree is a prerequisite in going to court. Typically, such a plan is entered into by divorcing parents and an unmarried father who does qualify in terms of the Act.

Section 35 of the Act contains a provision with its aim to prevent a parent from frustrating the other parent’s rights. If a person under whose care a child is refuse contact with the other parent who is also a co-holder and do so contrary to a court order or registered plan, such person could be found guilty of a criminal offence. Such person can be liable on conviction to a fine or imprisonment for a period not exceeding one year. A person, with whom a child lives, must also notify the other parent of a change of address. Failure could result in a criminal offence.

About Divorce Attorney Cape Town:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

New Research Gives Insights into Guidance about Parenting Plans

New Research Gives Insights into Guidance about Parenting Plans

Is shared parenting the best arrangement for kids? Should infants and toddlers be shuttled between two homes? Is it important to include children in decisions about care and contact? These are just some of the difficult questions facing parents, attorneys, judges, mediators and others who are involved in navigating children through the divorce process.

Recently, several numbers of reports have been released that summarize the state of the research on parental issues. The results are surely not simple, but they provide some really helpful insights into what parents need to consider in managing parenting following a divorce.

Marsha Pruett, Smith College of Social Work, provides a general set of guidelines for children at different ages. She notes that children at different ages have varying needs and differing abilities to navigate through and cope with the variations in changing families. She notes further that equal time in parenting is not always the best arrangement for families. She also reminds parents, “It is the quality of time and parenting – not the quantity – that is more highly related to closeness between parent and child.” According to her, “The absolute amount of parenting time should be emphasized less than a plan that allows for a schedule that enables both parents to feel and act engaged and responsible.”

A particularly challenging divorce situation is one in which the children are very young–infants and toddlers. There has been much debate about the appropriateness of overnight stays and shared parenting arrangements in general. Jennifer McIntosh has been studying this issue that provides a good summary of the research evidence to date. There is lots of evidence that parenting during the first 3 years of a child’s life is critical to health development, particularly in how child manage their emotions and cope with stress. McIntosh’s summary of the current evidence is that children in the first 3 years of life should not involve overnight care in two homes. She also notes that young children’s attachment to the non-residential parent can be achieved through regular contact that involves “warm, lively, attuned caregiving.” In short, children’s development depends less on whether or not children sleep in two homes, than on the quality of the parenting.

There are three primary ways parents can help insure that their children have fewer difficulties following divorce writes, JoAnne Pedro-Carroll, “the degree and duration of hostile conflict, the quality of parenting provided over time, and the quality of the parent-child relationship.” She summarizes the important research findings that focus on each of these factors. She emphasized that it is important for children to have rules and routines that give them a sense of security. Likewise, they need to know that they are loved and cared for by hearing the words, but also by actions that reflect active and engaged talk and play. And they will thrive better when their parents manage their own strong emotions and conflicts. She recommends that parents reframe their relationship to a more business-like model in which the goal is the well-being of the children. For high-conflict parents she describes a model of parallel parenting that can best serve children and minimize conflict.

Source: Huffington Post

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

DIVORCE AND FAMILY LAW ATTORNEY CONSULTS IN CAPE TOWN, JOHANNESBURG, PRETORIA AND DURBAN

Bertus Preller is a Family and Divorce Law Attorney at Abrahams and Gross Inc. and offers expert advice and assistance in all aspects of divorce, separation and family matters. Due to demand he is also now offering weekly consultations in Johannesburg, Durban and Pretoria on all family law related matters. He offers a broad knowledge and years of experience of the whole range of family law issues and consider with you how best to resolve and help you to achieve your aims.

When considering children matters, he aims to assist you in resolving matters in a way that reflects the best interests of the children. His team can help you in preparing agreements to reflect what you would wish to happen should your relationship break down and can help you deal with any litigation arising either from divorce or break down of a relationship.

Whether advising in the context of divorce or separation his team recognise and understands the level of stress and emotional trauma that accompanies the breakdown of a marriage. There approach is to advise and assist in a sympathetic but objective manner. The team are sensitive to the very personal issues involved and are able to recommend suitably qualified professional counsellors/mediators, where appropriate.

DIVORCE

Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can then legally marry again. The divorce process will depend on whether the marriage is a civil marriage or a customary marriage. Civil marriages gets dissolved according to the rules and procedures set out in the South African Divorce Act. Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition. Muslim and Hindi marriages are dissolved in terms of the rites and rituals of the religion.

There are a number of issues that need to be addressed in a divorce, including:

• custody of the children
• access to the children
• maintenance
• dividing up property
• Contested Divorces

Contested Divorces are when the Parties involved cannot reach an agreement. A contested divorce can last anything between 3 months to 3 years and can be extremely expensive financially and emotionally draining.
Many Contested Divorce cases still do not go on Trial and are settled long before they end up in Court. It is extremely difficult to assess the costs of a Contested Divorce, for these matters his team would bill at an affordable hourly rate – as do the other Professional Practitioners who will become involved in this matter – for example Advocates, Psychologists, Private Investigators and the like.

The team is extremely flexible on fees when they act  in a Contested Divorce and negotiate our fees with due cognisance of the client’s income and what the client can afford. Client’s also know exactly what they are in for to enable right from the start.

Uncontested Divorces

This is by far the least expensive process to get divorced and recommended if you have been married for a short time, you don’t have children, you don’t have many assets, and you can talk to each other and reach agreement on the settlement. eDivorce is a DIY divorce servive founded by Bertus Preller. The eDivorce process has two Divorce Plans from which you can choose:

The Silver Plan – R 950 + Sheriff fee of between R 100 – R 150

• All your divorce forms – completed for you by the eDivorce platform and checked by divorce experts

• Step-by-Step Guide -W ritten in plain English and easy to follow

• Fast Service – Documents delivered within 24 hours guaranteed

The Gold Plan – Managed Divorce Service – R 6 000 all inclusive

• The price you pay is fixed from the start of your case and includes everything you will need.
• Why choose our Gold Plan Managed Divorce Service?
• No complicated form filling – We will do that for you.
• All your required divorce documents-Prepared and completed by divorce specialists
• 7 day a week service- We are open when it is convenient for you.
• All documents filed at court for you – We deal with all the filing and admin.
• Settlement Agreements are catered for- We can help you, with or without children
• Get a Free Will – For both Husband and Wife if you need one.
• Divorce in 4 to 6 weeks -Fast service guaranteed.
• Attorney supervised – All services supervised by an Attorney
• Appearance at Court – We appoint an Attorney or Advocate to appear on your behalf at Court.
• Professional and Trustworthy
• Save over R 2000 – Fixed fee for all the work

DIVORCE MEDIATION

The court system is the way disputes are decided, but there are now more effective and very different ways of resolving conflict than just going through our courts. Mediation is a voluntary and confidential process in which a mediator facilitates communication between the parties, assists them in identifying the issues to be settled and helping them reach a mutually agreeable resolution for their dispute. We specialize in mediating divorce and family issues.

Mediation can guide a couple through the many complex processes of divorce and can help them to make decisions regarding the division of their assets, custody, visitation rights and child support. We can also mediate and draft a Parenting Plan, offering a framework for divorced parents to help them to stay close to their children after the inevitable separation.

MAINTENANCE

We assist clients in both maintenance claims in regard to a spouse as well as the children. When a couple get divorced, one party is often in a much better financial position than the other. In order for a court to award maintenance to a spouse there must be a need for such maintenance and an ability to pay. In case of maintenance of children both parents have a duty to support their children having due regard to their financial positions.

RULE 43 APPLICATIONS

We assist clients in obtaining maintenance pending the finalisation of the divorce proceedings. A Rule 43 Application is an interim application which is brought mainly in cases of contested divorces in order to obtain interim relief pending finalisation of the divorce. The relief which can be requested include maintenance for the wife, maintenance for the children, interim custody and control or access to the children and interim contributions towards legal costs.

MATRIMONIAL PROPERTY & PROPRIETARY CLAIMS

We assist clients with advice regarding the proprietary claims in their marriage. In a marriage in community of property, division of the joint estate is a natural consequence of a divorce. Forfeiture of benefits of the marriage in community of property can however be claimed by a party. The court would have regard to various factors i.e. the duration of the marriage, circumstances leading to the breakdown, misconduct of one of the parties etc.
Where the marriage is out of community of property specifically excluding the cruel system and entered into after 1 November 1994, on dissolution of the marriage in essence each spouse retains his or her own separate assets. There are, however various other potential claims which may be instituted based on moneys loaned and advanced, universal partnerships etc. Where a marriage is out of community of property without the accrual and entered before 1 November 1984 a redistribution order in terms of section 7 (3) of the divorce Act can potentially be claimed by a successful party. In order to be successful, a party must satisfy the court that he or she contributed directly or indirectly to the increase of the estate of the other.

Where the marriage is out of community of property subject to the accrual system the net assets of each spouse is determined. Any assets specifically excluded from the operation of the accrual in the Antenuptial Contract are excluded from the calculation.

Any commencement value, increase in accordance with the rise in the Consumer Price Index (CPI) from date of marriage to date of divorce, is deducted from the accrual to each party’s estate. The net results (estates) of each party are considered and the lesser net accrual deducted from the greater.

The net difference between the parties is then divided in two or in such other ratio as the parties may have agreed in their Antenuptial Contract and the party showing the greater accrual shall pay the other such amount in settlement of the patrimonial consequences of the marriage.

FAMILY – DOMESTIC VIOLENCE AND ABUSE INTERDICTS

We assist clients in obtaining protection orders under the domestic violence act in cases where domestic violence has been committed. Domestic violence includes physical abuse, sexual abuse, and emotional, verbal and psychological abuse.

It further includes intimidation, harassment, stalking, and damage to property, entry into someone’s residence without consent where the parties do not share the same residence or any other controlling or abusive behaviour towards the complainant.

VISITATION – CUSTODY AND ACCESS

We assist clients in every aspect of obtaining custody, access and/or visitation rights as well as drafting proper parenting plans in terms of the new Children’s Act. We also assist clients to obtain endorsement of Settlement Agreements at the family advocate where children’s rights are at stake.

ADOPTION

Adopting a child in South Africa is a complex matter. We work in conjunction with social workers in private practice who offers personalised and professional services four South African and International adoptions.

COHABITATION AGREEMENTS

In an age when one out of every three marriages fails, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than get married to each other. These couples and same-sex or heterosexual partners who choose not to get married should sign a domestic partnership ( life partnership or cohabitation) agreement to protect themselves should their relationship come to an end.

PARENTING PLANS

We assist both divorced couples and unmarried couples with formulating parenting plans that is in the best interest of their minor children.

PRIVATE INVESTIGATIONS

We assist clients in investigations regarding matrimonial services such as a cheating spouse. We formed an alliance with a reputable private investigation organisation which is based nationally who can investigate any matter notwithstanding whether it is of a matrimonial or financial nature.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

Parenting after Divorce, helping your children to cope with divorce

Parenting after Divorce

Following divorce, the role of a spouse ends, yet the role of a parent continues.

The following questions may be helpful –

• How can I be involved in my child’s life?
• How do I manage parenting if my ex spouse and I can’t get along?
• How can I get along with my ex spouse well enough to parent our children together?

Co-parenting means that both parents play an active role in their children’s day-to-day lives. A vital key to successful co-parenting arrangements is how well the parents function. What works best for some divorced parents may not work well for others.

Research has shown that benefits of co-parenting include:

• Children develop stability.
• Children continue relationships with both parents.
• Children are less likely to feel torn between their parents.
• Children are less likely to feel abandoned.
• Children are less likely to feel they have to meet the social and emotional needs of their parents.

In every divorce, parents must recognize the importance of finishing what they started namely raising their children. Divorce is extremely difficult for most children. They benefit when they have relationships with both parents and they tend to adjust better to divorce when:

• Parents don’t place their children in the middle of their conflicts.
• Both parents respond to the needs of their children.
• They have a good relationship with both of their parents.
• Parents don’t argue, especially when their children are present.

Problems between parent and child may result from problems between parents

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle. If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself.

Parents often disagree on how to discipline their children. When mothers and fathers have different rules, children may not respect either set of limits, or they may use the differences to gain power over parents. For example, a mother may change a curfew and the daughter may say to her father, “Mom lets me stay out until midnight.” It’s important to have clear rules and boundaries in your household. Try not to feel guilty if your rules are different than those of your ex-partner. If you are comfortable with the rules you have set, stick with them. When it seems you and your former-spouse can’t agree on certain issues, it helps to restate common goals.

Helping children adjust

Children can adjust to a variety of living patterns, including living in two homes. How well children adjust depends on whether parents can minimize their conflicts, stop arguing and focus on their children’s needs. When parents can’t agree, tell the children there will be separate rules in each home. It may be frustrating, but it’s important to remember that your children need you to be a strong, positive influence in their lives.

The following books can be recommended on the subject of parenting:

Helping your kids cope with divorce the sandcastles way.

The author will empower you to contain your children’s anxiety and feelings of insecurity and to re-establish a measure of equilibrium as effectively as possible. Using loads of case studies from her extensive files, Anne highlights the following: How, when and where to inform your children in an age-appropriate and honest way; Emotional support for you, the parent; Guidance on effective parenting skills to help your children. The how to of active listening, anger management and clear, firm and consistent boundary setting – all with practical examples.

This revised and updated second edition features ideas from the latest research, more information on long-distance parenting, dealing with the courts, and working with a difficult co-parent. “Parents argue a lot before a divorce,” says Dr. Stahl. “If they continue to argue after the divorce, their children will suffer.” Stahl knows parents are not perfect, and he uses that knowledge to show imperfect parents how to settle their differences in the best interests of the children. Often required reading in court-mandated divorce education classes.

Invaluable parenting advice on how to coparent. during and after divorce, from a sought-after expert on parenting topics. As a court-appointed child custody evaluator for 15 years, Dr. Peter Favaro is uniquely qualified to write this must-have guide for parents going through divorce. A child psychologist, he understands the effects divorce can have on families, especially when difficult exes, lawyers, visitation schedules, and other issues directly affect the child. Favaro addresses 50 essential topics in. short, easy-to-read chapters, including 100 dos and donts that will make things easier on your child–and better for your family.

Compiled by:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.