How to deal with the legal forms in a parenting plan and the Family Advocate’s requirements with child participation

December 1st, 2018
x
Bookmark

By Chris Maree

Parenting plans are a child focused alternative dispute resolution process mandated by legislation, to assist the holders of parental responsibilities and rights to coordinate and regulate the manner in which the co-holders of responsibilities and rights will exercise their respective parental responsibilities and rights.

In a society in which nearly 67% of all minor children do not live within a nucleus family environment, parenting plans may serve as a very valuable tool in the hands of the family law practitioner.

In line with the requirement that co-holders of parental responsibilities and rights in relation to a child should employ actions and decisions which will minimise further legal or administrative proceedings (s 7(n) of the Children’s Act 38 of 2005 (the Act)), parenting plans are just one of the benefits of mediation in such parental responsibilities and rights disputes.

The mandatory determination that the co-holders of parental responsibilities and rights in respect of a child, when experiencing difficulties in exercising their respective parental responsibilities and rights, must first seek to agree on a parenting plan before referring to litigation, is still disregarded by many practitioners and courts (s 33(2) of the Act).

Such an approach still favours the adversarial process and place the emphasis on the inability to focus on the needs of the child, and instead focus of the needs of the parents willing to destroy the other co-holder of rights and responsibilities to be crowned the ultimate victor.

What is a parenting plan?

A parenting plan can be defined as follows: A parenting plan is a unique document that is compiled for a specific family and, which represents the best possible solutions to avoid future litigation and to ensure the optimal participation of both parents and their minor child/children. It is developed by means of a mediated process to address the ever-changing needs of the minor child/children involved taking into account the inputs made by the child/children given their age, maturity and stage of development.

Format and other requirements

Any application for a parenting plan to be registered by the Family Advocate or for it to be made an order of court or to be incorporated into a Court Order, must be in writing and must be in the prescribed format (s 34(2) and 34(3) of the Act, reg 9 to 11 of the Regulations published under the Act in GN R261 GG33076/1-4-2010 (the Regulations)).

Step 1 – Form 8, 9 and 10

The parenting plan must be accompanied by a Form 8 or a form identical to Form 8 must be utilised. Form 8 consists of Part A, B, C and D. Part A of Form 8 deals with the particulars of the holders of parental responsibilities and rights to whom the parenting plan applied and will require the following information –

  • surname;
  • full names;
  • identity number, date of birth, passport number;
  • residential address;
  • home telephone number;
  • cellular telephone number;
  • e-mail address;
  • work address;
  • work telephone number; and
  • relationship to the child/children.

If more than two holders of parental responsibilities and rights enter into a parenting plan the details of such holders of parental responsibilities and rights can be furnished on a separate page and attached to Form 8 as an annexure.

Part B of Form 8 provides for the details of the child/children in respect of whom the parenting plan applies and will require the following information:

  • the surname of the child;
  • full names of the child;
  • identity number, date of birth, passport number;
  • residential address; and
  • contact number.

If more than three children are involved in a parenting plan the details of the additional children in respect of whom the parenting plan applies can be furnished on a separate page and attached to Form 8 as an annexure.

Part C of Form 8 consists of a notification to the Family Advocate, the Clerk of the Court or the Registrar of the High Court and provides space to include the place where the parenting plan is to be registered or made an Order of Court and the date. This notification must be completed and signed by all the holders of parental responsibilities and rights whom requires the parenting to be registered at the Office of the Family Advocate or to be made an Order of Court.

Part D of Form 8 provides for a notification to the Office of the Family Advocate, Clerk of the Court or the Registrar of the High Court where a parenting plan has been prepared with the assistance of a Family Advocate, social worker or psychologist, or after mediation by a social worker or other suitably qualified person. In such matter a Form 9 or Form 10 must be attached to the parenting plan (s 33(2) and 33(5) of the Act).

This part will find application in instances where co-holders of parental responsibilities and rights have experienced difficulties in exercising their responsibilities and rights. Where assisted by a Family Advocate, social worker or psychologist referred to in s 33(5)(b) of the Act, the co-holders of parental responsibilities and rights must complete in writing a Form 9 or a form identical to Form 9 (s 33(2) of the Act; reg 10(1) of the Regulations).

I suggest that practitioners complete all the parts of Form 8 to avoid delays when submitting a parenting plan.

  • Form 9

Form 9 not only provides for a statement from the Family Advocate, social worker or psychologist who assisted the co-holders of parental responsibilities and rights to compile the parenting but also now introduces the voice of the child (ss 6(5) and 10 of the Act; reg 10 of the Regulations).

Form 9 provides for the Family Advocate, social worker or psychologist to confirm that the information regarding the contents of the parenting plan was furnished to the child/children and that the child/children have been given an opportunity to express their views and that their views have been given due consideration bearing in mind the age, maturity and stage of development of the child/children.

Form 9 will be utilised for example in matters where the Family Advocate, social worker or psychologist were approached by the co-holders of parental responsibilities and rights where the parties only disagreed on certain aspects of the parenting plan and needed assistance to finalise the parenting plan or to engage with the child/children to determine the voice of the child/children. Form 9 will also be utilised when dual mediation took place in a matter.

  • Form 10

Form 10 provides for a statement by a social worker or other suitably qualified person that a parenting plan was prepared after mediation. One could safely assume that this statement could also be made by a Family Advocate and psychologist who were pivotal in the mediation process between the parties, which culminated in the finalisation of a parenting plan.

Form 10 also provides for a statement by the social worker or suitably qualified person to confirm that the information regarding the contents of the parenting plan were furnished to the child/children, and that the child/children have been given an opportunity to express their views, and that these views were given due consideration bearing in mind the child/children’s age, maturity and stage of development.

Step 2 – child participation – s 10 of the Act

Bearing in mind the age, maturity and stage of development it is of the utmost importance that the voice of the child/children be heard during the development of the parenting plan and that the views of such a child/children have been given due consideration. I suggest that Forms 9 or 10 be utilised to confirm that the voice of the child/children have been taken into account (reg 11 of the Regulations; s 6(5) of the Act).

Recognising the child/children’s right to participate is further highlighted in s 31 of the Act, which deals with major decisions involving children by a person holding parental rights and responsibilities.

Step 3 – what should be included into a parenting plan

A parenting plan should act as a roadmap and must establish guiding principles, which will assist the co-holders of parental responsibilities and rights to reach the ultimate goal of addressing the ever-changing needs of the child/children, and not the parents, always acting in the best interests of the child/children involved.

The following can be included in a parenting plan but is not limited to the aspects mentioned as the needs of child/children differs:

  • Decision making and sharing of parenting.
  • Period covered by the parenting plan.
  • Parental responsibilities and rights:

– Full or specific.

– Care, namely, residency; safeguarding and promoting the well-being of the child/children; and guiding the behaviour of the child/children.

– Contact – all aspects.

– Guardianship.

– Maintenance.

  • Naming of the child, for example nick names.
  • Education – school fees, namely:

– Government or private: Who will be liable for school fees?

– Who will be liable for tertiary institutional fees?

  • Religious and spiritual matters.
  • Maintenance – be specific who will contribute, amounts as well as the annual increases.
  • Medical arrangements.
  • Hairdressing needs, namely who will cut and style the child/children’s hair.
  • Clothing needs.
  • Extramural activities.
  • Transport.
  • Communication, consultation, information on sharing and conflict resolution.
  • Contact between parents to re-evaluate the parenting plan and to address the developmental needs of the minor child/children.
  • Provisions about re-evaluation.
  • Relocation:

– In South Africa.

– Out of the borders of South Africa (guardianship could be a requirement when relocating to certain countries).

  • Discipline.
  • New partners.
  • Death of a parent:

– Funeral arrangements.

– Cultural heritage.

  • Contact with extended family.
  • Cultural heritage.
  • Changes to parenting plan:

– How?

– When?

– What if the parents disagree?

– Mediation.

– The appointment of the parenting coordinator.

  • Provisions about legal enforceability.

– Court orders and s 34(5) of the Act.

Who may compile a parenting plan?

The parenting plan should be prepared after mediation/consultation with the parents by the Family Advocate, social worker, psychologist or other appropriate suitable person (for example mediators) contemplated in s 33(5)(b) to the effect that the plan was prepared after mediation by such person.

Mediation is a fair, cost effective and amicable process. The parties are in a situation where they communicate effectively and brainstorm workable solutions. In most cases, this process results in parties who can continue to communicate even after divorce, where it is vitally important when children are involved.

The mediator must explain the necessity to focus on the child/children, both parents their future and preserving their respective relationships with the child/children.

The mediator will explain the process, the parenting plan and the involvement of a professional team.

Mediators work collaboratively with professionals that are pro-mediation and pro-preserving the family dignity, to prevent alienation in the future and promote co-parenting skills.

Changes to the parenting plan

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. A parenting plan that was made an order of court may be amended or terminated only by an order of court.

Chris Maree BCom (Law) LLB (UJ) is the Senior Family Advocate and Head of the Pretoria Office of the Family Advocate at the Department of Justice and Constitutional Development in Pretoria.

Winner of Parental Alienation DVD


Geraldine Kaye from McClung-Mustard Attorneys in Pinetown, KwaZulu-Natal is the winner of the Family Assist DVD, ‘Dynamics of Parental Alienation’, which is valued at R 250.
Congratulations Ms Kaye!

This article was first published in De Rebus in 2018 (Dec) DR 36.

Loading...