by slamatattorneys | May 24, 2021 | Family Law
Parenting Plans – seek engagement of an expert attorney for common sense approach
A parenting plan is a useful collaborative contract in regard to the parenting arrangements agreed to by parents at the end of a relationship.
In this instance it is also important to note that it is not exclusive to divorce proceedings but can be applied to un-couplings and indeed also to relationships where the parents have never lived together in one household or at all.
In the event that a parenting plan is agreed to it is apposite to note that a parenting plan has greater impact in law when it has been made an order of a competent court than when it has only been registered with the Family Advocate’s Office.
Thus, it is imperative that an expert such as an attorney specializing in family law be engaged to attend to, inter alia, the consultations, drafting of and registration of parenting plans.
Competent, thoughtful and skilled drafting of legal documents is a pre-requisite for any legal agreement that is reduced to writing and these attributes are only acquired through years of knowledge and experience gained in the practice of law.
In cases where a divorce has already been decreed, a parenting plan can still be drafted thereafter and registered with the Family Advocate’s Office following the engagement and attendance of the attorney who is an expert is such matters as this provides the clients with an assurance that the matter will be dealt with professionally.
It is important to comply with the applicable law and standard documentation prescribed by law.
Various terms must be documented in regard to, inter alia, living arrangements, maintenance and parental contact and so forth with the pertinent issues being inter alia:
- where and with whom the child(ren) is(are) to live;
- how responsibility for the maintenance of the child(ren) is to be divided;
- contact arrangements in regard to the child(ren);
- daily routines;
- behavioural aspects;
- provisions regarding mutual respect and co-operation;
- frequency of communications;
- provisions in regard to schooling and religious upbringing of the child(ren).
Most if not all of the material issues in regard to the above will be included the parties settlement agreement, in the event of a divorce, with a parenting plan providing slightly more detail in that regard. Once the plan is finalized and signed by both parents, it becomes a legally binding agreement inter partes.
Upon filing with the Family Advocate’s Office, the agreement will be perused and considered in various respects and recommendations may be made if necessary and the parties can apply for the plan to be made an order of the court.
It is apposite to understand that there is no one type fits all parenting plan or set list of terms in regard to a parenting plan.
Equally important is that the parties to the parenting plan are permitted by law to re-assess the parenting plan from time to time to adapt to changing circumstances and life events.
There is also no need to go overboard in regard to the particularity of the terms of parenting plans such as the brushing of the child(ren)’s hair, clothes to be worn and styling thereof, lacing of shoes, etc etc as these are within the individual parents discretion in terms of their views on life and the child(ren)’s feelings, which are in a constant state of flux.
www.slamatlaw.co.za
by slamatattorneys | May 22, 2021 | Family Law
The Parenting Plan basics – in collaboration with an expert attorney
A parenting plan is modern, useful method of enabling parents who experience difficulties to manage the rearing of their child(ren) post a divorce or uncoupling. This can be achieved with the input of an expert attorney.
Introduced into South African law by the Children’s Act 38 of 2005 (the Act), it originated in many western civilised countries as a means by which these difficulties can be managed towards a non-confrontational mindset and practical solution post the end of a relationship.
A number of pieces of legislation were repealed by the Act when it essentially came into law on 01 June 2007, these include the following:
- the Children’s Act 33 of 1960;
- the Age of Majority Act 57 of 1972;
- the Child Care Act 74 of 1983;
- Children’s Status Act 82 of 1987; as well as
- the Guardianship Act 192 of 1993.
The implementation of certain chapters of the Act was delayed and those sections applicable to parenting plans were promulgated in 2010.
A parenting plan is the subject of regulation in sections 33 to 35 of the Act. While it is not mandatory in divorces or un-couplings, the Act does suggest that it be used when parents are experiencing difficulties in the decision-making pertaining to their children. Usually these difficulties arise or manifest more when parents are at the end of a relationship and when there are social or family related influences which affect their children, such as upbringing of the respective parents, differences in ideology, religion, race, financial means, culture, language and other social factors.
While the Act, in terms of sections 18(1) and (2) provides for the parental rights and responsibilities of both parents regarding the care and contact of the child(ren) and to have input in the major decisions regarding the child(ren)’s future, as well as the pivotal daily decisions pertaining to the care, contact, welfare, and personal development of the child, sometimes it does happen in life that parents do not or can no longer cooperate with each other on all or any of the decisions in regard to their child(ren), such as those like living arrangements, health, education, financial obligations, the involvement of new partners, step-parents, discipline, way of life, after school time, what the child(ren) do in the evenings and so forth. Some of these issues may seem trivial but invariably the aforesaid issues are actually the most frequent and hotly disputed.
The involvement of new partners or step-parents in the decision-making pertaining to a child(ren) is one which has always been contentious and recently the escalation of this issue has reached an unprecedented level and is one which must be considered very carefully when the terms of a parenting plan are considered and implemented.
While the primary objective of the parenting plan is to regulate the how, when, where parents will exercise their respective rights and responsibilities under the changed set of circumstances it is also intended to cater for the ever-changing needs of the minor child(ren) involved by considering the age, maturity and developmental stage of the child(ren), and always applying the best interests of the child principle in each particular case.
While the Act does not compel parents who are in agreement on co-parenting measures to conclude a parenting plan, it does stipulate that, in the event of disagreements and to avoid the risk of further litigation that they first attempt to on a parenting plan, prior to approaching the court for a determination on these rights and responsibilities. This implies meaningful consensus seeking from both parties.
From a purely legal perspective, certain basics would be attributes of a parenting plan. These are, inter alia, the following:
- The plan needs to be customised to a particular family and their circumstances.
- Full participation of both parents will be essential and nuances appreciated.
- Child(ren) participation to a reasonable, logical extent with age appropriateness.
Common sense and the practicalities of modern life remain invaluable guiding principles.
Compromise and the acceptance of the other parent’s wishes and way of life are also attributes of a sensible parenting plan and the methodology to be applied in drafting the terms of the parenting plan in a collaborative manner with an expert attorney.
www.slamatlaw.co.za
by slamatattorneys | Mar 17, 2021 | Family Law
Divorce Act 70 of 1979-To amend the law relating to divorce and to provide for incidental matters.
Section 1 deals with definitions –
“Divorce Action” means an action by which a decree of divorce or other relief in connection thereto is applied for, and includes an application pendente lite for an interdict, interim maintenance order, access to minor child or payment of maintenance. It can also include an application made for a contribution towards the costs of such an application.
For the purposes of the Divorce Act 70 of 1979 a divorce action shall be deemed to be instituted on the date on which the summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of court.
Section 2 deals with the jurisdiction of courts in divorce actions. A court will have jurisdiction over a matter if the parties are domiciled or ordinarily resident for a period not less than one year in the area of jurisdiction of the court on the date on which the action is instituted.
Section 3 sets out the grounds on which a marriage can be dissolved –
- The irretrievable break-down of the marriage(Section 4)
This is when the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.
The court will accept evidence hereof that –
- The parties has not lived together as husband and wife for at least 1 year or
- That one of the parties has committed adultery or
- That one of the parties has been declared a habitual criminal and is undergoing imprisonment as a result of such a sentence.
The court will not order a decree of divorce if there is a reasonable possibility that the parties can become reconciled through marriage counseling, treatment or reconciliation.
- The mental illness or the continuous unconsciousness of a party to the marriage (Section 5).
The court will order a decree of divorce if such party is in terms of the Mental Health Care Act 1973 –
- admitted as a patient to a institution,
- is detained as a state patient in an institution or
- is detained as a mentally ill convicted prisoner at an institution.
The party must have been detained for at least two years prior to instituting of the proceedings and two psychologists, one appointed by the court, must have given evidence that there’s no reasonable prospect for recovery.
- The court can also grant a decree of divorce when a party to a marriage is in a state of unconsciousness due to a physical disorder for at least 6 months prior to the proceedings and after evidence from two medical Attorney-at-Laws , one which must be a neurologist or neurosurgeon appointed by the court.
Except for the above, a court can also provide legal representation for either party to divorce proceedings and make an order with regard to providing security in respect of patrimonial benefits to which the party may be entitled to as a result of the dissolution of the marriage.
Section 5 ends by stating that a court will not dissolve a marriage if either or both of the parties will not be able to remarry because of religious reasons or barriers.
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