A parenting plan

... a significant document in which parents will agree on how their children will be raised after separation or divorce. It is a written agreement drafted by both parents with the assistance of an independent third party, usually a social worker, psychologist or family lawyer ( or other suitably qualified professional), acting as a mediator.

The Children’s Act requires that children may be consulted during these discussions so that they can express their wishes. The Act is clear that a child does not have a right to choose which parent they wish to reside with, but that the view of the child is a factor to be taken into account in any matter pertaining to that child – and other factors such as the age and emotional maturity of the child must be considered

The parenting plan is a written agreement which must be signed by both parents.

It is important that parents understand that the parenting plan is not a permanent document incapable of being changed. It is not a right and inflexible document and with changing circumstances, including the child growing older and changing needs of the parents and children, the parties would need to revisit their agreement from time to time.

Our courts are very clear that parents must make every effort to resolve their disputes between themselves prior to resorting to litigation. Parties are encouraged to first attempt mediation – in fact it is mandatory that they do so.

Every parenting plan should contain a dispute resolution section, where the parties commit to first trying mediation.

A parenting plan will only be successful if both parents are committed to the process of communicating effectively about the best interests of the children. The parents must deal with realistic time frames for contact and suitable age appropriate contact arrangements which would encourage and foster a positive relationship with both parent and the child.

Parental responsibility

Parental responsibility is defined in the Children’s Act as the responsibility to care for the child, to maintain contact with the child, to act as guardian of the child, and to contribute to the maintenance of the child.

The Children’s Act further sets out that a person may have full or specific parental responsibilities and rights. Full parental responsibilities and rights means that a person may be entitled to all the rights set out in the Act. Specific parental responsibilities and rights means that a person may only have a specific right in terms of the Act.

A parent or guardian

A parent or guardian:
• administers and safeguards the child’s property and property interests;
• assists or represents the child in administrative, contractual and other legal matters;
• gives or refuses any consent required by law in respect of the child, including consent to marry, to be adopted, to leave or be removed from the country and to apply for a passport; and
• gives or refuses consent to the alienation or encumbrance of any immovable property of the child.

The Act governs both the acquisition and loss of parental responsibilities and rights not only by the parents of the children involved but also in respect of other persons, for example interested third parties like a grandparent.

A person may acquire parental responsibilities and rights automatically or by way of an agreement, a will or a court order. Biological parents acquire parental responsibilities and rights automatically in terms of the Act.

Biological parents

Biological mothers
The biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights solely on the fact that she has given birth to the child. It is by virtue of the biological tie.

Married biological fathers
The biological father has full parental responsibilities and rights in respect of the child if:

• he was married to the child’s mother at the time of the child’s conception and birth;
• he is married to the child’s mother; or
• they are or were married at any time after the birth.

Unmarried biological fathers
The Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for the biological unwed mothers.

According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:

• at the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married;
• regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and
• he contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

Did you know: Mother’s need consent of the father to acquire a passport! See Case Law and Legislation

Disputes

If the parties cannot agree and a dispute arises between the biological parents over any aspect of parental responsibility, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person.

Mediation is the process whereby the participants, together with the assistance of an independent neutral party, will work together to achieve a settlement that will meet the needs of the parents and of course, the child.

If the parties are unable to reach agreement on whether the father satisfies the criteria or not, the family advocate, or other professional assisting in the mediation will issue Form 6 – a Certificate of the outcome of the mediation. The parties only other option in the absence of an agreement is to approach the Court. The court will refer the matter to the family advocate for investigation as to what is in the best interests of the child and request that the family advocate prepare a report with their recommendations for Court’s consideration.

If the parties reach agreement that the father does not satisfy the criteria, they may still agree to enter into a parental responsibilities and rights agreement, wherein the mother confers certain parental responsibilities and rights on the father. Alternatively, the father may apply to be granted certain parental responsibilities and rights, care, contact or guardianship.

If the parties reach agreement that the father does satisfy the criteria, they can enter into a parenting plan. The family advocate, or toher suitably qualified professional, will then assist the parents

Care and contact of children

The word “custody” is not used in the Children’s Act. It appears to have been replaced by the word “care”.
In the case of a parental dispute parties must first attempt to mediate and only then approach Court in the absence of an agreement. Mediation is therefore a prerequisite for being allowed to approach the court.

Section 1 of the Children’s Act defines “care” which includes more than just providing a place for the child to live.

The new definition of care includes what used to be referred to as custody. The definition of care is a broad concept which includes financial support, promoting the well-being of the child, promoting his or her rights and directing the child. Both parents have a duty and responsibility to ensure that the child has a suitable place to live and to live in conditions that are conducive to the child’s health, well-being and development.

Contact is more easily compared with the previously used term “ Access”.

Section 1 of the Act says that “contact” means maintaining a relationship with the child.

This would include communication with the child on a regular basis by visiting or being visited by the child, or other regular forms of communication including post / telephone or electronic.

What is a Children’s Court

A Children’s Court is a special court which deals with issues affecting children.
The children’s court also takes care of children who are in need of care and protection and makes decisions about children who are abandoned, neglected or abused.
Any person/ child may approach the clerk of the children’s court when he/ she believes that a child may be in need of care and protection.
The Children’s Court can place a child in safe care or refer the child and/or the parent to services that they may require.
Children’s Court does not deal with criminal cases.
Did you know that the following people MUST report a possible case of child abuse?
Dentists
Teachers
Social workers
Lawyers
Ministers of religion
Nurses
Traditional leaders
Did you know that a child may be adopted jointly by a husband and wife; partners in a permanent domestic life-partnership; or other persons sharing a common household and forming a permanent family unit?

Why protect children's rights?

The inclusion in the Bill of Rights of a special section on the rights of the child was an important development for South African children.

In S28 (2) of the Constitution of the Republic of South Africa Act 108 of 1996, it is stated that “a child’s
best interests are of paramount importance in every matter concerning the child.”

The Divorce Act 70 of 1979 also attempts to shield a child from the cruel consequences of divorce. Section 6 of the Act regulates the position of the child when a couple decides to get divorced. The court will not grant a decree of divorce until it is satisfied that the arrangements that have been made are the best that can be achieved in the circumstances. Once the court is satisfied, it can make any order it deems fit regarding the guardianship, custody, access and maintenance.

Section 6 empowers the court to conduct any investigation it deems necessary or order any person to appear before it in order to gain enough information to establish what is best for the child in the circumstances. A court may also appoint a legal representative for the child and order the parties or a party to pay for the costs of such legal representation. Furthermore, s28(1)h of the Constitution entitles a child to have a legal practitioner assigned to him or her by the state, at state expense, if substantial injustice would otherwise result.

Tension may arise between the relationship of a child’s interests and rights on the one hand, and interests and rights of other family members on the other hand. In many cases, parent litigants have failed to argue the rights of children separately from their own interests. Parents may put their own desires before their children’s needs and thus it is up to a judge to determine a necessary outcome where children are shielded from harm.

As a child now has specific constitutional rights to have their “best interests” protected, it can be understood that children have some degree of autonomy to assert their rights against others, including their parents. Thus children should (after considering certain factors such age and emotional maturity), participate in decisions about their future.

Children need special protection because they are among the most vulnerable members of society. They are dependent on others - their parents and families, or the state when these fail - for care and protection. As a result, the drafters of our Constitution have made children's rights a priority - and have stated that the best interests of a child are the overriding concern when it comes to any matter affecting him or her.

Section 28 - Children

Section 28 of the Bill of Rights, entitled "Children", says:
Every child has the right to -
1. a name and a nationality from birth;
2. family care or parental care, or to appropriate alternative care when removed from the family environment;
3. basic nutrition, shelter, basic health care services and social services;
4. be protected from maltreatment, neglect, abuse or degradation;
5. be protected from exploitative labour practices
6. not be required or permitted to perform work or provide services that -
are inappropriate for a person of that child's age; or place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
7. not be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be -
kept separately from detained persons over the age of 18 years; and is treated in a manner, and kept in conditions, that take account of the child's age; have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and not be used directly in armed conflict, and to be protected in times of armed conflict.

A child's best interests are of paramount importance in every matter concerning the child.

In this section 'child' means a person under the age of 18 years. This section gives children the right to a name, citizenship and some form of care. Children need food and shelter, and should be protected from abuse, neglect and degradation. No child should work when under-age, or do work that would interfere with his or her education or development.

Children should be jailed only as a last resort and should not have to share a cell with adults. They should not take part in wars and should be protected during conflict. The second sub-section, a very important clause, says a child's interests are the most important consideration in any matter concerning the child.

Decisions about which parent to reside with after the parents' divorce have an enormous impact on children.

These decisions are important not only in the short term, but also in the long term, as they may impact on the children's future
prospects. The same applies to children born out of wedlock. In family law, the central principle relating to children is that any decision made should be in the best interests of the child. The Convention on the Rights of the Child provides that the best interests of the child must be a primary consideration in all actions concerning that child.

South African courts are also compelled to place particular emphasis on the best interests of the child, not only because of their role as
upper guardian of all minors but also because of the provisions of s 28(2) of the Constitution of the Republic of South Africa, 1996, which provides that `[a] child's best interests are of paramount importance in every matter concerning the child'.

The question of the `best interests' of the child has led to intensive debate in many reported judgments. What is best for a specific child or children cannot be determined with absolute certainty.

The factors to be taken into account when determining the best interests of the child are unfortunately not comprehensively
specified in our law.

Determining the best interests of the child

The courts are left with the task of determining the best interests of the child, but without a simple and easily applicable way of establishing these interests. The question remains whether determining the best interests of the child means attending to everything that affects the child or whether certain considerations should be disregarded.

Should the courts take into account that one of the parties seeking custody has substantially greater income and is able to give the child better schooling, better medical care, and a less dangerous environment?

Should they look at other considerations, such as homosexuality, religion, race or ancestry?

What about living in a `free country' or being a member of an ethnic community one has ancestral ties with?

Or does `best interests' mean the interests of the child in as far as nurture and care are concerned, such other considerations
notwithstanding?

The meaning of the concept best interests of the child is still not clear nor easy to determine.

In McCall v McCall8 King J set out the guiding factors the court must take into account in relation to the granting of an application as follows:
In determining the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance.

The criteria are the following:
(a) the love, affection and other emotional ties which exist between parent and child and the parent's compatibility with the child;
(b) the capabilities, character and temperament of the parent and the impact thereof on the child's needs and desires;
(c) the ability of the parent to communicate with the child and the parent's insight into, understanding of and sensitivity to the child's feelings;
(d) the capacity and disposition of the parent to give the child the guidance which he requires;
(e) the ability of the parent to provide for the basic physical needs of the child, the called `creature comforts', such as food, clothing, housing and the other material needs generally speaking, the provision of economic security;
(f) the ability of the parent to provide for the educational wellbeing and security of the child, both religious and secular;
(g) the ability of the parent to provide for the child's emotional, psychological, cultural and environmental development;
(h) the mental and physical health and moral fitness of the parent;
(i) the stability or otherwise of the child's existing environment, having regard to the desirability of maintaining the status quo;
(j) the desirability or otherwise of keeping siblings together;
(k) the child's preference, if the court is satisfied that in the particular circumstances the child's preference should be taken into consideration;
(l) the desirability or otherwise of applying the doctrine of same sex matching;
(m) any other factor which is relevant to the particular case with which the court is concerned.

Previously, South African courts relied on some of these factors when deciding custody matters. It is clear, therefore, that the applicant must satisfy the court, on a balance of probabilities, that he or she has the intelligence, character, sense of responsibility and understanding to equip him or her to exercise the custody of a child in a manner that will be in the best interests of the child.

The court has to consider the ability of a parent to give a child the love and care he or she will need, and further has to ensure that the parent is a suitable person to be entrusted with the responsibility of such custody. In other words, the parent should possess the
necessary skills and responsibility to fulfil his or her role as custodian parent in all respects. It will also be in the best interests of the child if it is clear that the bond between the child and the parent is strong, and the child has a good understanding of his or her parent's care and love for him or her.

In the McCall case, the court was concerned with two separated parents who competed for the custody of their 12-year-old son. In the event, custody was awarded to the father because his child stated a clear preference to be placed in his father's care. It was held that if the child has the necessary intellectual and emotional maturity to express his or her preference and to make an informed and intelligent judgement, weight should be given to the child's preference. What should be considered, therefore, is what is in the best interests of the child.