Divorce Attorney Cape Town

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it where no parenting plan exist or where a court order was made years ago that did not keep track or became outdated with the changes in our family law over the years.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 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.

Advertisements

Divorce and Child Abduction in South Africa


DIVORCE AND CHILD ABDUCTION

As a divorce attorney I frequently get instructions to assist a parent whose child has been abducted by the other parent to another country. Frequently it happens that a child visits the other parent in a foreign country by consent between the parents only to find when the child has to return that the other parent wrongfully keeps the child there. International child abduction also happens when one parent takes a child from the country where he or she usually lives to another country without the consent of the other parent.

The Hague Convention on International Child Abduction is applicable to matters because of its definition of “rights of custody”. The Hague Convention is broadly worded to also cover for situations where the child has been abducted by a person other than his/her parent.

The Hague Convention only applies if countries ratified the convention. South Africa ratified the Hague Convention and as such it is part of our domestic law. Also section 275 of the South African Children’s Act proclaims that the Hague Convention is part of South African law. The Hague Convention is only applicable to children under the age of 16 years.

The removal or retention of child is unlawful where it breaches the right of contact (custody) that a person obtained in terms of a court order in the area where the child was habitually resident. In order to succeed with an application under the Hague Convention a party must be able to show that a parent is exercising the custody rights at the time of removal or retention of a minor child. When it comes to making a decision to remove a child from the country where he is usually habitant both guardians (parents) must consent, thus if one parent removes a child without the consent of the other parent, the Hague Convention will apply.

If there is a delay in the proceedings of returning the child back to the country where he is usually habitant for more than a year after the proceedings have been lodged, the court is not bound to return the child if he or she has settled into a new environment. In such a case the court will consider the best interests of the child; although a court under a Hague Convention application does not do so. Regulations in the Hague Convention determine that such a matter must be concluded within 6 weeks after commencement of the court proceedings.

There are also exceptions to the rule of peremptory return of a child, namely:

  • Where the person does not have rights to custody or if the parent had consented in the removal of the child.
  •  Where there is a grave risk that the child would be exposed to psychological or physical harm if being returned.
  •  If the child objects being returned and is of such an age and maturity that it is inappropriate to take account of his/her views.

About the Author

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 Bertus Preller & Associates 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 father’s rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Divorce Ends Marriages…But Families Endure…


Divorce Ends Marriages…But Families Endure…

“Children need and deserve the love, care,
and support of both their parents”

Divorce is said to be one of the most traumatic experiences in the life of a person. Not only is it traumatic for the spouses but also for the children. In our current society it is not difficult see what the effects of divorce have on spouses, families and children. The ripple effect of a divorce rolls into the lives of most of the extended family members and close friends. As a family law attorney I see the effects of divorce every day. What parents should realise is that although the spousal relationship may end at divorce, the parental relationship will endure for a lifetime. The more acrimonious the break-up the more difficult will it be for the parents to parent their children in future. It is therefore of utmost importance that spousal conflict should bow for the sake of the best interests of the children, sooner rather than later. As a matter of fact, all that children want is to be happy. Unfortunately in many divorces it is the parents that act like children.
Here are some pointers for parents:

  1. Try to resolve your conflicts without putting your kids in the middle. Be objective about your children’s needs (do not confuse them with your own). Resolve a conflict sooner rather than later.
  2. Treat the other parent with respect, like you want to be treated. Set an example for your children. Our children imitate our behaviour. The disrespect that you show toward the other parent will be played out by the child in his own life. It’s extremely important for a child’s healthy development to have respect for authority figures, including both parents.
  3. Know your boundaries. When it comes to your children, it’s sometimes very difficult to tell yourself what they’ are doing while they are with the other parent, well it is actually none of your business, unless they will be physically or psychologically harmed, it probably is none of your business.
  4. Communicate regularly about the children with the other parent. There are lots to share. When children are still small, the other parent needs to know the basics when parenting responsibilities are being transferred. The worst-possible scenario is that a lack of communication may lead to a child not being picked up after school or day care, or important medical treatment being disrupted.
  5. Demonstrate positive conflict resolution to your children. You can use conflict as an opportunity to show your children how to resolve issues in a responsible manner.
  6. Do not allow all of the parenting tasks to fall on one parent. Things that are out of balance usually don’t work well. Don’t expect the other parent to be in charge of all of the communicating, extra purchases for your child or all of the discipline that needs to be done.
  7. Be a consistent parent – in disciplining, feeding and caring for your children. It really makes transitions from one household to the other easier, it minimizes the outbursts from children after visits at the other parent. Respect the other parent’s parenting approaches, and do recognize that while consistency is optimal, differences are okay. Children can distinguish that something that’s okay at Dad’s house may not be okay at Morn’s house.

The various ages and how children react to divorce:

Zero to One Year

Babies at this age begin to form attachments, so it is important to minimize changes and disruptions in their lives and show them love and affection. It’s important that they spend time with both parents so they can form attachments with both. Signs of distress can be excessive crying, problems with feeding or sleeping, and withdrawal.

One to Three Years

At this age children become more mobile and gaining communication skills. They are also able to recognize close adults, so they are sensitive to separation. These kids need consistency in routine and patience from their parents to safely explore their environment. Signs of distress are nightmares, mood changes, and changes in toileting.

Three to Five Years

Kids at this age believe they are the center of the universe, and so they feel responsible for the family split. Parents need to be positive during exchanges, keep a consistent schedule, and tell the kids that the divorce or split is not their fault. Signs of distress include toileting and sleep problems.

Five to Ten Years

Kids at this age are entering school and forming relationships outside the family. They may try to reunite parents and may feel and act out intense anger. Parents should develop a schedule that allows for consistency with school and extracurricular activities, and support their kids’ interests and friendships. Signs of distress at this age include expressions of anger, drop in school performance, sleep problems, and physical complaints.

Ten to Twelve Years

Pre-teens tend to see things in black and white terms, and so may align themselves with one parent. Parents should encourage these kids to love both parents and support their kids’ school and other activities. Signs of distress in pre-teens may include loss of interest in friends, becoming a perfectionist, depression, and isolation.

Early Adolescence (Thirteen to Fifteen Years)

Teens will often prefer to spend more time with friends than family, so allow room in the parenting plan for this. These teens need firm but fair guidelines and positive role models. They may also want to be included in creating the parenting plan. Signs of distress in this age group may include excessive anger or isolation, difficulty with school or peers, alcohol and drug use, and sexual acting out.

Late Adolescence (Sixteen to Eighteen Years)

Teens in this age group are learning to be independent to prepare for the separation from their parents, but they still need support and rules. These teens may also want to be included in creating the parenting plan. Watch for signs of distress, including reduction in school performance, difficulty with peers, alcohol and drug use, and sexual acting out. If parents aren’t able to talk, your teen can say, “I’m spending tonight at mom’s (dad’s) house,” and you won’t know if they’re really there.

Shared Parenting


What is Shared Parenting?

“An arrangement whereby children freely enjoy the love and nurture of both parents and their wider family following separation or divorce …it does mean that sufficient time is spent with each parent for the child to view each parent as a parent rather than an aunty or uncle.”

(ASP definition of Shared Parenting as adopted by CAFCASS in 2004)

Shared parenting is an arrangement after divorce wherein both parents continue to have a strong positive presence in their children’s lives. Shared parenting entails that a child spend equal or significant amounts of time with each parent.

As a divorce and family law attorney I see a huge shift towards a more collaborative approach between parents to share equal time with their children after divorce.

Shared parenting arrangements may differ to suit various situations. Time between each parent may be split 50/50 or the children may live with one parent for example, four days every week and the rest of the week with another parent.

After divorce, shared parenting is a preferred alternative to asking the children to choose where they want to live. Many children prefer shared parenting rather than the traditional arrangements. With shared parenting, the children still has the chance to have a meaningful relationship with both of their parents.

There are many benefits to shared parenting. It allows a child to have both his/her parents present in his/her life and although the child has to switch between two homes, shared parenting reassures the child that both parents care for them. This arrangement is more beneficial to a child than when they live with only one parent because often the latter creates a distance both physical and emotional between the child and the “absent” parent.

Studies show that children of divorced couples who retain meaningful relationships with each parent are the ones who find it easier to deal with the breakup of their parents. Research also shows shared parenting is possible despite intense conflict between parents if the parents focus on what is best for their children.

Almost half of the children in the U.S. are deprived of the lifelong benefits of two parents who share the parenting throughout the first 18 years of their children’s lives.

The Benefits of Shared Residence and Shared Parenting

  • Removes the need for a child to choose between the parents
  • Allows both parents to love and nurture the child in much the same way as they did prior to parental separation and therefore promotes the continuation of family life
  • The child does not feel rejected by the non-resident parent and does not blame himself
  • Confirms to the child that he still has two parents who love and wish to care for him
  • The child derives emotional and psychological security from having two fully engaged parents
  • The child is no longer brought up to believe that the resident parent is the real, better or main parent and that the non-resident parent is a lesser parent or to be rejected
  • Re-affirms the responsibility of each parent to care and provide for the child
  • Sends a clear message to the resident parent, schools, doctors and the courts that both parents are equal and that all decisions relating to the child should be based on this principle
  • The child is more likely to grow up in a well-adjusted manner
  • Reduces parental hostility as it requires both parents to negotiate and make joint decisions

Bertus Preller is a Divorce and Family Law 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.

Bertus Preller

B.Proc; AD Dip L Law

Family Law Attorney

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

F: 086 572 8373

C: +27 (0) 83 443 9838

E: bertus@divorceattorney.co.za; W:  www.divorceattorney.co.za; Twitter: www.twitter.com/edivorce;

Facebook: www.facebook.com/divorceattorneys; Skype: divorceattorney

%d bloggers like this: