Divorce Attorney Cape Town

A Court can enforce the implementation of Parenting Plan


In the case of MM v AV 2011 ZAWCHC 425, the mother of a child adopted the stance that she did not wish to co-parent their minor child with the father. In the past however she did facilitate the father’s involvement in the child’’s life to a significant degree since the time of his birth. The court was of the view that it was not open to the mother, in the absence of the father failing to act in the child’s best interests, to simply elect not to co-parent with him. The mother’s primary objection and opposition in this matter was that she could not be ‘forced’ to enter into a parent plan with the father on the basis sought by him. In her affidavit she claimed that she did not like the father and that she did not trust him and that in those circumstances she should not be compelled to co-parent the child with him.

Background

The parties met one night in August 1999. Their son, was conceived that night and the parties’ respective versions of events surrounding the child’s conception were divergent. According to the father he had no recollection of the events of that night due to his state of intoxication and had in fact no recollection of having had sexual intercourse with the mother on that night. He stated that the only proof he had that the parties indeed had sexual intercourse on the night in question is the outcome of paternity tests conducted on the child, which established the father to be the child’s biological father.

The mother stated that she had no recollection of having had sexual intercourse with the father due to her intoxicated and/or drugged state and that she could not have consented to sexual intercourse in the circumstances. Because, so she contended, the father could remember having sexual intercourse with her, he must have been in a position to know that she was not able to consent to sexual intercourse with him: accordingly she stated that she was raped and that the father could therefore not acquire parental rights and responsibilities in respect of the child as contemplated in s 21 of the Children’s Act 38 of 2005 (‘the Children’s Act) as read with the definition of ‘parent’ contained in s 1 of the Children’s Act. The allegation of rape was raised for the first time by the respondent on 1 February 2010 when the child was 9 years old, shortly prior to the father commencing proceedings in court on 12 February 2010 for the recognition and definition of his parental rights and responsibilities in respect of the child.

The Law

Prior to the implementation of the Natural Fathers of Children Born out of Wedlock Act, 86 of 1997 (“the Natural Fathers Act’), such fathers were obliged, in terms of the common law, to apply to the High Court, as upper guardian of all minor children, to be granted rights in respect of a child born out of wedlock. In the event of there being a dispute, the rights to be conferred on such a father and the manner in which these rights were to be exercised were determined by the court. Such an order was essentially a ‘parent plan’ setting out how parental rights were to be exercised.

With the implementation of the Natural Fathers Act, these fathers were afforded, by statute, locus standi to apply for certain rights in respect of their children born out of wedlock. Again, in the event of there not being an agreement with the mother of the child, the court was required to determine which rights should be granted to the father. Similarly, if there was a dispute in respect of the manner in which any of such rights were to be exercised, the court made a determination and gave an order setting out the manner in which such rights were to be implemented; again, a ‘plan’ setting out how parental rights were to be exercised.

Section 21 of the Children’s Act similarly makes provision for parents of children born out of wedlock to agree upon a parent plan. Where the parties are not able to agree either directly or through mediation then either party has the right to approach court in order to determine how their parental rights and responsibilities are to be exercised.

Accordingly, the provisions of s 21 of the Children’s Act are nothing new: they simply serve to ‘codify’ the legal position which previously pertained. What is important to note is that this is entirely consistent with the ‘best interests of the child’ principle enshrined in the Constitution of the Republic of South Africa. Section 28 of the Constitution stipulates that in all matters concerning a child it is the child’s best interests which are paramount and that every child has the right to parental care. In my view those provisions recognise and moreover dictate that a court as upper guardian of all minor children must place the interests of the child and the rights of the child above those of his or her parents.

In matters pertaining to children, Section 28(2) of the Constitution of the Republic of South Africa reads as follows:

‘2. A child’s best interests are of paramount importance in every matter concerning the child.’

The concept that the interests of the child are of paramount consideration is also contained in Article 3(1) of the United Nations Convention on the rights of the child. The convention was adopted unanimously by the general assembly of the United Nations on 20 November 1989. South Africa became a signatory to the convention on 29 January 1993 and it was ratified by South Africa on 16 June 1995.

The ‘best interests of the child’ principle has underpinned both statutory provisions pertaining to children as well as our case law and is retained in the Children’s Act. In fact, the Children’s Act goes further and places significant emphasis on child participation in decisions in respect of their care and wellbeing.

It was stated in Terblanche v Terblanche 1992 (1) SA 502 (W) at 504C-D that the court has ‘extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes’.

In September v Karriem 1959 (3) SA 687 (C) at 689A Herbstein, A J P stated:

‘If the Court is of the opinion that it should interfere with the rights of the parents, because the interests of the children demand such interference, it should be at large to act in the manner best fitted to further such interests.’

He stated further ‘It seems to me that the Court as upper guardian should be given as complete a picture of the child and its needs as possible. Nothing of relevance should be excluded. For while certain aspects taken separately might appear to be of no real importance, in combination they might build up a strong case in favour of one or other conclusion.’

In E v S 1995 (3) SA 571 (A) at 581 A, Howie JA referred to Re KD (a minor)(ward: termination of access) [1998] 1 All ER 577 (HL) at 588g-j, and quoted with approval:

‘Parenthood, in most civilised societies, is generally conceived as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that that entails. That is a privilege, which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or the authorities on whom the Legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say the welfare of the child.’

And further (in reference to rights of contact), that:

‘Whatever the position of the parent may be as a matter of law, and it matters not whether he or she is described as having a ‘right’ in law or a ‘claim’ by the law of nature or as a matter of common sense, it is perfectly clear that any ‘right’ vested in him or her must yield to the dictates of the welfare of the child.’

In Bobera’s Law of Persons at page 319 footnote 17 it is stated that:

‘It has long been recognised in South Africa that the parental power (or “natural guardianship”) is in fact concerned more with duties and responsibilities of parents than with parents’ rights and powers – the modern emphasis in this regard being on the rights and interests of children rather than parents’.

The law is thus clear: it is the interests of the child which are paramount in all matters concerning a child and the interests of the child take preference over the interests of the parents.

In South Africa, and sadly by virtue of its appalling history of human rights failures and the consequent legacy of social and societal disadvantages, it seems to me that the protection and promotion of the rights of children is all important. When these most vulnerable members of our society are protected by our courts so that they can have, inter alia, proper parental care it will follow (at least in the majority of cases) that as adults they will in turn inculcate the same values in their own children. If we ‘get it right’ with our children we will be making a valuable contribution to our constitutional vision of a society based on human dignity, rights and freedoms.

Cost orders in child matters

It has been held that in disputes relating to children, it may not be appropriate to make a costs order adverse to either party because of the predominant interests of the child involved. King J (as he then was) in McCall v McCall 1994 (3) SA 201 (CPD) at 209B-C stated:

“As I have said, both parents have, in contesting this case, acted in what they believed to be in the best interests of their child. There is no winner and no loser. There are two concerned parents. I intend to make no order as to costs. The effect of this is that each party will bear their own costs.”

In Bethell v Bland & Others 1996 (4) 472 (W) at 475E-I Wunsch J considered that the correct approach would be that generally speaking a successful litigant would be entitled to his or her costs. He states further:

“1.    Generally speaking, a successful litigant is entitled to his or her costs.

2. While it is quite true that a custody dispute should not be seen as an adversarial contest in the ordinary sense but rather as an enquiry into the best interests of the child, it cannot be denied that in most cases the litigants are advancing their own preferences and seeking satisfaction of their love of the child. Often, too, the papers contain many attacks on the character and conduct of the opponents.

3. On the other hand it is also a consideration that a party should not be discouraged from putting up a case which he or she, on broadly reasonable grounds, thinks to be in the interests of the child for fear of having costs awarded against him or her if unsuccessful. By the same token, a party who is, on what turn out to be good grounds, confident that his or her case will prevail, should not be discouraged from taking or resisting actions because of the costs which he or she will incur.

4. However bona fide and concerned a party may be, if his or her opponent’s judgment of the issue prevails, it is not, in the absence of circumstances justifying it, fair that the opponent should be mulcted in his or her own costs.”

In this matter the court did implement a parenting plan and made a cost order against the Respondent mother.

Consent from both Parents needed regarding a change of schools


The case of Nel v Nel [2011] ZAWCHC 113 dealt with the fact that both parents need to consult each other when a child’s school is being changed. In this matter the mother decided to put the children in a new school without consulting the father.

The Applicant and the Respondent was embroiled in divorce proceedings. The parties had 2 children ages 3 and 8 years of age. In terms of a Court Order issued by Desai J, in the Cape High Court on 23 June 2009, the children were primarily resident with the Respondent subject to reasonable contact being afforded to the Applicant as set out in the order.

The eldest child was a learner at Kenridge Primary school in Bellville, after he attended the pre-school at the same school in 2007, Grade R in 2008 and or 2009 and 2010 he attended Grades 1 and Grade 2 respectively. The eldest child was happy at the school and did not have any problems.

The youngest child attended Pixie Daycare in the same area, and would have attended Fledglings Pre-Primary School, adjacent to Kenridge Primary School in 2011.

When the new school year commenced, it came to the notice of the Applicant that the Respondent had without informing or consulting the Applicant, removed the eldest child from Kenridge Primary School and did not enroll the youngest child as agreed with the Applicant at Fledglings Pre-Primary School in Kenridge, Bellville. This was common cause between the parties.

Section 31(1)(a), read with Section 31(b) (iv) of the Children’s Act 38 of 2005 states:

“Major decisions involving child – (1)(a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(b)    a decision referred to in paragraph (a) is any decision –

(i)    …………………………

(ii)   …………………………

(iii)    ……………………………….

(iv) which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.”

The Respondent enrolled the children at Islamia College in Rondebosch East. It was also common cause that the Respondent did not advance any reason why she did not inform the Applicant thereof, at that time when this happened.

In later correspondence from her attorneys it emerged that to ease her travelling burden, she took this step. In her Answering Affidavit, she only stated that the children were granted bursaries to attend the new school.

The crisp question was whether, notwithstanding the parental rights of the Applicant, whether the fact that they were removed from one schooling environment to another, was in the best interests of the children.

The Respondent in her papers averred that by moving the children back to their previous schools would not be in their best interests.

It was clear that the actions and conduct of the Respondent was in contravention of the law, and a court will not lightly condone such conduct on the part of a parent, where it is clearly not justified, under the guise that it is in the best interests of the children.

Apart from stating boldly, that by moving the children back to their previous school environment, would not be in their best interest, the Respondent did not give substantial reasons why she believed that it was in their best interests to remove them from Kenridge Primary School or to have the younger child enrolled at Fledgings Pre-Primary School as agreed to with the Applicant.

Both children were at a young age, the older child had been in that school environment since 2007 and the younger child since 2009.

There was clear evidence from the Applicant and the school that the children were happy and content with this environment. The Respondent disturbed the status quo, the onus was on her to show why it would be in the best interests of the children to disturb this and she clearly did not.

There was no objective evidence to suggest that the removal of the children from the one schooling environment to the one the Respondent chose was in their best interests so as to disregard the rights of the Applicant to have been properly informed or consulted about the fact that the Respondent had removed the children from one schooling environment to another.

The court had to deal with the question whether it would have been in the best interests to move the children back to their previous schooling environment.

The court was of the view that having regard to the short time the children had spent at Islamia College and also it being a whole new environment compared to the longer time they had spent at Kenridge which was a known and stable environment to them, there would be a greater harm if they were not moved back to their previous schooling environment.

The court was of the view, that it was dealing with young vulnerable children, and the fact that the school year had basically reached one month, the harm would have been greater to the children had this application not been heard on an urgent basis

The Applicant therefore made out a case why the application should have been heard in terms of Rule 6(12) of the Uniform Rules of Court.

After consideration of the papers and after hearing Counsel for both parties, the following order was made:

The Respondent was ordered to immediately return to and/or re-enroll the minor children B N, born on 7 June 2002 and S N, born on 5 September 2006 at Kenridge Primary School and Fledgings, the pre-school facility at Kenridge respectively by no later than Friday the 18th  of February 2011.

The Family Advocate was directed to urgently investigate what school and aftercare arrangements would be in the best interests of the children, pending the finalization of the parties’ divorce.

Divorce – Don’t play chess by using your children as pawns


DIVORCE – Don’t play chess by using your children as pawns

This world is rife of parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realise the damage they are doing in using their children as a means to get back at the other parent.

By isolating or alienating the children from the other parent is damaging not only to the other parent but even more damaging to the children. As a family law attorney I have seen cases where one parent will go to immeasurable lengths to isolate the other parent from building a parental relationship with his/her children, thereby depriving the children in the process of the only stability they may have left.

So often you hear about the mother that lays sexual molesting charges, with no substance against the father simply in an attempt to isolate the father from having a relationship with the children or a mother obtaining a Domestic Violence interdict against a father simply to interdict the father from having a relationship with his children. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort there are also attorneys who fuel the battles on behalf of their clients and who somehow lose sight of what the best interests of the child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

In terms of section 33 (2) of the Children’s Act parents who experience difficulties in exercising their parental responsibilities and rights in respect of a child must, before seeking the intervention of a court, first seek to agree on a parenting plan. The section discourages co-holders of parental responsibilities and rights from approaching the court as a first resort when they experience difficulties in exercising those rights and responsibilities.  This section does not compel parents to enter into a parenting plan, it simply instructs them to attempt to agree on one. Looking at this section closely it seems that where one parent refuse to engage in such discussions the court may be approached for then an attempt to agree on a plan was made, even if it was doomed from the start.  Section 33(5) instructs a person to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan. It is therefore clear that before approaching the court, a person must first seek such assistance. If the other party is not amenable to engage then obviously a court may be approached.

Section 35 of the Act criminalises the refusal to allow someone who has access or holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect to exercise such access. It also criminalises prevention of the exercise such access. Punishment is either a fine or imprisonment of up to one year.

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 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 and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals.

 

Parenting Plans, all that you should know


Parental Responsibilities and Rights – Parenting Plans

By Bertus Preller – Family Law Attorney, Abrahams and Gross Inc.

As a family law attorney I am daily involved in drafting, negotiating and implementing parenting plans or parental responsibilities and rights agreements. Parenting planmeans a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being.

When a divorce is inevitable, a couple must decide who will be awarded primary residency of the minor children or whether the parties will share residencies and who may regularly contact them at reasonable times, how this will be exercised and so forth. Prior to the new Children’s Act 38 of 2005 (the Act), the parental rights were referred to as custody and access. Now those terms have been abolished and have been extended to include ‘parenting responsibilities and rights’, which include the obligation to care for the children and the responsibility and the right to maintain contact with the children.

Where parents were not married to each other, the question of parental responsibilities and rights may arise and an agreement pertaining to parental responsibilities and rights may be reached and certain procedures provided in the Act have to be followed.

Where a dispute arises regarding the implementation of the agreed parental responsibilities and rights, parents may, with or without the assistance of the family advocate, create a parenting plan to detail what is required from each other regarding parental responsibilities and rights. The parenting plan has to be registered with the family advocate and/or be made an order of the court.

Parental Responsibilities and Rights Agreements – s 22

In terms of Sections 19 and 20 of the Act both parents have equal responsibilities and rights with regard to the children. When separating, both parents have to decide with which parent the children are to reside and what the contact rights of the other parent will be.

Unlike before the promulgation of the Children’s Act where one parent had full custody of the children, according to the new Act both parents have full capacity to care for their children after divorce.

However, a situation may arise where parents of a child or children were not married and the question of paternity arises that result in parental responsibilities and rights becoming a dispute.

Section 22(1) of the Act provides that, subject to subs (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with –

‘(a)    the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or

(b)     any other person having an interest in the care, well-being and development of the child’.

Section 22(2) provides that the mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement on a person contemplated in subs (1) those parental responsibilities and rights that she or that other person has in respect of the child at the time of the conclusion of such an agreement. That is, the biological father or any other person that has an interest in the care, well-being and development of the child may conclude an agreement with the biological mother of the child whereby the latter will confer such responsibilities and rights to the former.

It is provided in s 22(3) that

‘[a] parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars’.

In terms of s 22(4), subject to subs (6), a parental responsibilities and rights (PRR) agreement takes effect only if –

‘(a)    registered with the family advocate; or

(b)     made an order of the High Court, a divorce court in a divorce matter or a children’s court on application by the parties to the agreement’.

Thus where parties have concluded a PRR agreement without the assistance of the family advocate, a social worker or psychologist, such PRR agreement will not take effect until it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or a children’s court where the parties made an application to register the agreement. A new development is that divorce matters may now be dealt with by a regional court and therefore a PRR agreement will take effect when registered at the regional court in a divorce matter.

Before registering a PRR agreement or before making a PRR agreement an order of court, subs (5) provides that ‘the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child’.

The family advocate is therefore required by the Act to ascertain that – where a PRR agreement was made by the parties without its assistance and subsequently registered with it – it must satisfy the provisions of s 7 of the Act in addition, in terms of s 9, in all matters concerning the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied. The court is in the same vein required to ascertain, before it makes it an order of the court, that the PRR agreement meets the best interests standard set out in s 7 and that standard is applied in terms of s 9 of the Act.

In terms of subs 6(a) a PRR agreement registered by the family advocate may be amended or terminated by the family advocate on application –

‘(i)        by a person having parental responsibilities and rights in respect of the child;

(ii)        by the child, acting with leave of the court; or

(iii)       in the child’s interest by any other person, acting with leave of the court’.

The subsection therefore provides that the child concerned or any person acting in the child’s interest, may, with the leave of the court, make an application to the family advocate to amend or terminate the PRR agreement. Other than that, a person who does not have parental responsibilities and rights in respect of the child does not qualify to make an application that the family advocate amend or terminate a PRR agreement registered with it.

In terms of subs 6(b) a PRR agreement that was made an order of court may only be amended or terminated on application –

‘(i)        by a person having parental responsibilities and rights in respect of the child;

(ii)        by the child, acting with leave of the court; or

(iii)       in the child’s interest by any other person, acting with leave of the court’.

Subsection 6(b) also requires the court that granted the PRR agreement to observe that, other than the child concerned or any other person with the child’s interests, both acting with the leave of the court, a person with no PRR in respect of the child cannot make application for that court to amend or terminate it.

In terms of subs 7:

‘[O]nly the High Court may confirm, amend or terminate a [PRR] agreement that relates to the guardianship of a child’.

This is by virtue of the High Court being the upper guardian of all minor children.

Parenting plans

Sections 33 and 34 of the Children’s Act make provision for ‘parenting plans’. Many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons are now faced with the task of acting in accordance with ss 33 and 34 of the Act.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights, outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a family advocate or made an order of the High Court. Parenting plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one.

Section 33 of the Act provides for two situations in which a parenting plan comes into play. They are the optional situation and the mandatory situation.

Optional situation – s 33(1)

Section 33(1) of the Act states the following:

‘(1)    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.’

This situation would apply when the parties want to have a structured parental plan in place but none of them intends to go to court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but want to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights in respect of the child.

Mandatory situation – s 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case the Act prescribes to them to first try to agree on a parenting plan before going to court. Section 33(2) states:

‘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.’

Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take them to court, before they do so, they should first try to agree on a parenting plan before approaching the court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the court may then be approached.

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to s 33(3) of the Act:

‘A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a)     where and with whom the child is to live;

(b)     the maintenance of the child;

(c)     contact between the child and –

(i)  any of the parties; and

(ii) any other person; and

(d)     the schooling and religious upbringing of the child.’

Furthermore, the regulations to the Act prescribe child participation, bearing in mind the child’s age, maturity and stage of development. Regulation 11, which deals with participation of a child in preparation of parenting plans states the following:

‘(1)    Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration.

(2)     When a parenting plan has been agreed [on] the child … bearing in mind the child’s age, maturity and stage of development, [must] be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.’

Therefore, before an optional or mandatory parenting plan can be registered with the family advocate or made an order of court, reg 11 must be applied.

Section 34 of the Children’s Act

This section deals with the formalities of a parenting plan that need to be adhered to before it can be registered with the family advocate or made an order of court. It states the following:

‘(1)    A parenting plan –

(a)     must be in writing and signed by the parties to the agreement; and

(b)     subject to subsection (2), may be registered with a family advocate or made an order of court.

(2)     An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must –

(a)     be in the prescribed format and contain the prescribed particulars; and

(b)     be accompanied by a copy of the plan.

(3)     An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must –

(a)     be in the prescribed format and contain the prescribed particulars; and

(b)     be accompanied by –

(i)    a copy of the plan; and

(ii)   a statement by –

(aa)   a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.

(4)     A parenting plan registered with a family advocate 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.

(5)     A parenting plan that was made an order of court may be amended or terminated only by an order of court on application –

(a)     by the co-holders of parental responsibilities and rights who are parties to the plan;

(b)     by the child, acting with leave of the court; or

(c)     in the child’s interest, by any other person acting with leave of the court.’

Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared.

If s 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply.

According to s 33(4) of the Act:

‘A parenting plan must comply with the best interests of the child standard as set out in section 7’.

Approval of parenting plans in court

Should parents agree on a proposed parenting plan, the court will usually approve it. If the parents do not agree, the court will decide on a parenting plan after a hearing or trial. The court looks at various factors when coming to a decision, but the most critical issue is that the plan serves the best interests of the child.

Enforcement of the parenting plan

Once the court signs a parenting plan, both parents must adhere to it. For example, a parent may not deny the other parent access if his child support is outstanding.

If one parent does not allow the other to see the child when he has the right to do so, he may be found in contempt of court. If a parent is found in contempt, the court could order jail time, fines or another type of punishment.

Is it possible to alter a permanent parenting plan?

It is difficult to alter a parenting plan after it is final. Usually, it may be changed if the parents agree to the change. If the parents do not agree, the court may make major adjustments, such as whom the child lives with, only if a major change has occurred in the child’s life or the other parent’s since the original parenting plan was final. It is not sufficient that the parent wanting the change thinks that his life has improved so much that the children should now live with him. Should the parents not agree on the change, one of these things must have occurred before the court will order a change in where the child lives

  • the child has gone to live with one parent for an extended period of time with permission of the other parent;
  • the parent who does not want the change has been held in contempt of court or has been convicted of interfering with the other parent’s time with the child; or
  • the child’s present life with a parent has been shown to be physically or emotionally harmful.

A party may ask to change a parenting plan through his attorney or on his own through the family courts, but must remember that whatever changes are made, the court must find them to be in the children’s best interest.

What if a parent wants to move with the child?

All parenting plans must state what will happen if one of the parents wants to relocate with the child. The law requires the parent who wants to move the child to give the other parent written notice before a move. The notice gives the other parent a chance to object to the move and to ask the court to change the existing parenting plan.

Conclusion

The conclusion of a PRR agreement and the registration of a parenting plan, which is subsequently made an order of the court requires the family advocate and the court to take into account the best interest of a child. Section 7 of the Act lists factors to be taken into account to determine the best interest’s standard, which is applied in terms of s 9.

It is important to note that our courts will not be looking for the so-called ‘perfect parent’, as no such type of parent exists. Our courts will opt for a solution that is ‘the least detrimental available alternative for safeguarding a child’s growth and development’. Our courts have also emphasised that the concept of parenting is a gender neutral function, and the mother or father are seen as equally capable to care for a child. The residence and contact regarding children is determined by the High Court with assistance of the family advocate. Agreements concerning the care of children and arrangements for contact by the parent who does not have the residency of the child should be incorporated into the parenting plan.

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.

Source De Rebus

Children Custody Matters, what we can learn from Charlie Sheen


As an attorney I often advise clients regarding what they should and should not do during a contested divorce where care and contact of the children or custody as we know it is at stake. Here are some important lessons learned from the hours of Charlie Sheen interviews attracting media attention the past few weeks.

Call me old fashioned, but a judge typically do not let 2-year-old twins return to a house where the dad is having a 2 ½ -some.

If you are going to partake in “extracurricular activities” during a custody dispute, at least find a hotel, there are lots of these in South Africa. It is much easier explaining to a judge this charge on a credit card, as opposed to justifying why this behaviour is appropriate in the home.

When determining child custody issues, South African courts have accepted through the years the “Best Interest of the Child” standard. This means that courts are free to consider whatever facts they believe to be relevant when making a child custody determination. This standard is based upon the legal theory “in loco parentis,” which basically means that the court stands “in the place of the parent” when asked to determine a child custody matter. Accordingly, the court takes the place of both the parents when determining what is best for the children in the circumstances.

In the Sheen matter, the analysis will be slightly more complicated. Sheen and Brooke Mueller recently signed a custody agreement or as we know it in South Africa a parenting plan. By signing this document, both the parents essentially stated that they believed the terms of the agreement will be in the best interest of the children. Mueller has asked the court to set aside the recent custody agreement because of a change of circumstances (e.g. Sheen’s recent strange and disturbing behaviour), and because the change would be in the best interest of the children. Because of all the interviews that Sheen has given, there is no shortage of proof that Sheen has new or exasperated issues (whether it be manic episodes, bipolar symptoms, drug use or just poor parenting decisions), and that the agreement granting Sheen unsupervised visitation rights should be re-examined.

At the very least, Sheen’s decision to expose the two-year-old twins to his two so-called “goddesses” will be seen as an important change of circumstances to cause the court to make a thorough analysis of what future care and contact arrangements is in the best interest of the children.

A Porn star is not a qualification to be a nanny.

If you are wealthy and fighting custody battles rather hire someone akin to Mary Poppins. She would be a great witness at trial and people may even love the accent.

Admitting taking substantial amounts of cocaine in the past months, when you claim that your wife has a sobriety problem; it’s almost like the pot calling the kettle “Charlie Sheen.”

Courts appreciate when a parent admits that there is a problem and attempts to get help for that problem and Judges will recognize that people are fallible. If a parent, such as in Sheen’s case goes on national television to proclaim that he is not fallible and in fact has tiger blood, he has not helped his case.

If you have already shot your fiancé and threatened your second wife, been arrested on a violent charge, you probably shouldn’t threaten to kill your current wife during a custody case.

Violence against the other parent will be considered when determining custody and visitation arrangements. This is because courts do recognize that a child’s psyche is significantly affected when watching or learning that there have been acts of domestic violence between his or her parents. If a parent threatens (or is violent against) the other parent, courts may surmise that this parent may threaten (or become violent against) the child in the future.

If we have learned nothing else from Napoleon, you probably shouldn’t fight a two-front war at the same time.

If you have your hands full with a custody battle with wife number three, maybe now is not the time to make threatening and derogatory statements against wife number two. I know it is a recession, but your divorce attorneys may not be that hard up for work.

So what should Sheen do now? The answer is clear….do what is in the best interest of the children.

Bertus Preller is a Divorce and Family Law Attorney in Cape Town who deals with divorce matters all over South Africa 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.

Parenting Plans and Divorce in South Africa


Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.

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