Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 /EINPresswire.com/ —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at Amazon.com

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals. 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, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461

 

Follow Bertus Preller on Twitter: http://www.twitter.com/bertuspreller
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To visit the book’s official website go to: http://www.divorcelaws.co.za

Divorce Attorney Cape Town
Bertus Preller & Associates Inc.
+27214222461

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.