Parenting Plans, Parental Responsibilities and Rights in the New Children's Act
July 31st, 2010All About Parental Plans and the New Children's Act
By Bertus Preller - Family Law Attorney KWJ Inc.
Chapter 3 of the New Children's 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.
Parental responsibilities and rights - Section 18
In terms of Section 18 read a person may have either full or specific parental responsibilities or rights in respect of a child. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right 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.
A parent or other person who acts as guardian of a child must administer and safeguard the child's property and property interests, assist or represent the child in administrative, contractual and other legal matters or give or refuse any consent required by law in respect of the child, including consent to the child's marriage, consent to the child's adoption, consent to the child's departure or removal from the Republic, consent to the child's application for a passport; and consent to the alienation or encumbrance of any immovable property of the child.
Whenever more than one person has guardianship of a child, each one of them is competent, unless any other law or any order of a competent court specifies the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of the above paragraph.
Parental responsibilities and rights of mothers - Section 19
The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. If the biological mother of a child is an unmarried child who does not have guardianship in respect of the child and the biological father of the child does not have guardianship in respect of the child, the guardian of the child's biological mother is also the guardian of the child. However, this does not apply in respect of a child who is the subject of a surrogacy agreement.
Parental responsibilities and rights of married fathers - Section 20
The biological father of a child has full parental responsibilities and rights in respect of the child if he is married to the child's mother or if he was married to the child's mother at the time of the child's conception or the time of the child's birth or any time between the child's conception and birth.
Parental responsibilities and rights of unmarried fathers - Section 21
The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child if at the time of the child's birth he is living with the mother in a permanent life-partnership or if he, regardless of whether he has lived or is living with the mother consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law or contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. This does not affect the duty of a father to contribute towards the maintenance of the child in any way.
If there is a dispute between the biological father and the biological mother of a child with regard to the fulfilment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court. This applies regardless of whether the child was born before or after the commencement of this Act.
Parental responsibilities and rights agreements - Section 22
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 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 any other person having an interest in the care, well-being and development of the child.
It is important to note that subject to the above, the mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person mentioned above those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.
A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars. A parental responsibilities and rights agreement takes effect only if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children's court on application by the parties to the agreement.
Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, 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.
A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application by a person having parental responsibilities and rights in respect of the child, by the child, acting with leave of the court; or in the child's interest by any other person, acting with leave of the court. A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application by a person having parental responsibilities and rights in respect of the child by the child, acting with leave of the court or in the child's interest by any other person, acting with leave of the court. Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.
Assignment of contact and care to an interested person by order of the court - Section 23
Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children's court for an order granting to the applicant, on such conditions as the court may deem necessary contact with the child; or care of the child.
When considering an application contemplated above the court must take into account the best interests of the child, the relationship between the applicant and the child, and any other relevant person and the child, the degree of commitment that the applicant has shown towards the child, the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child, and any other fact that should, in the opinion of the court, be taken into account. If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the
Child, and may suspend the first-mentioned application on any conditions it may determine.
The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.
Assignment of guardianship by order of court - Section 24
Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant. When considering such an application the court must take into account the best interests of the child, the relationship between the applicant and the child, and any other relevant person and the child; and any other fact that should, in the opinion of the court, be taken into account. In the event of a person applying for guardianship of a child that already has a guardian; the applicant must submit reasons as to why the child's existing guardian is not suitable to have guardianship in respect of the child.
Termination, extension, suspension or restriction of parental responsibilities and rights - Section 28
A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to the High Court, a divorce court in a divorce matter or a children's court for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.
An application referred to above may be combined with an application for the assignment of contact and care in respect of the child and may be brought by a co-holder of parental responsibilities and rights in respect of the child, by any other person having a sufficient interest in the care, protection, well-being or development of the child, by the child, acting with leave of the court, in the child's interest by any other person, acting with leave of the court or by a family advocate or the representative of any interested organ of state.
When considering such application the court must take into account the best interests of the child, the relationship between the child and the person whose parental responsibilities and rights are being challenged, the degree of commitment that the person has shown towards the child and any other fact that should, in the opinion of the court, be taken into account.
Court proceedings - Section 29
An application in terms of section 22(4)(b), 23, 24, 26(1)(b) or 28 may be brought before the High Court, a divorce court in a divorce matter or a children's court, as the case may be, within whose area of jurisdiction the child concerned is ordinarily resident. An application in terms of section 24 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child. The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.
When considering such an application the court must be guided by the principles set out in Chapter 2 of the Act to the extent that those principles are applicable to the matter before it. The court may for the purposes of the hearing order that a report and recommendations of a family advocate, a social worker or other suitably qualified person must be submitted to the court. A matter specified by the court must be investigated by a person designated by the court, a person specified by the court must appear before it to give or produce evidence or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.
The court may, subject to section 55 of the Act appoint a legal practitioner to represent the child at the court proceedings and order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.
If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for investigation in terms of section 155(2) of the Act.
Co-holders of parental responsibilities and rights - Section 30
More than one person may hold parental responsibilities and rights in respect
of the same child. When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where the Children's Act, any other law or an order of court provides otherwise.
A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.
An agreement in terms of the above paragraph does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.
Content of Parenting Plans - Section 33
The Children's Act does not contain a definition of a parenting plan. Looking at Section 33 (1) one it is obvious that a parenting plan refers to an agreement in which the co-holders of parental responsibilities and rights can make arrangements on the way in which they will govern and exercise their respective rights and responsibilities.
The new children's act discourages co-holders of parental rights and responsibilities from approaching the court as first resort when they experience difficulties in exercising their rights and responsibilities. The Act instructs co-holders who experience difficulties to mediate before seeking court intervention. The parties are not compelled to enter into a parenting plan. The act simply instructs them to attempt to agree on parenting plan. If one looks at section 33 (2) it seems that if one of the co-holders refuse to engage in discussions about a parenting plan, the court may be approached.
Section 33 (5) instructs parties to seek assistance of a family advocate, social worker or a psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan as contemplated in section 33. It is obvious from the wording of section 33 that the co- compelled to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person. It is therefore quite obvious that a party cannot approach the court unless the matter is referred to mediation as discussed above.
It is important to note that the above deals with instances where the parties experience difficulties in exercising their parental rights and responsibilities. Co-holders who are not experiencing difficulties in exercising their parental rights and who are merely entering into a parental plan need not obtain the assistance of a family advocate, social worker or psychologist or go for mediation. Only when the parties have difficulties in exercising their responsibilities and rights are a statement by a family advocate, social worker or psychologist or mediation required.
Formalities - Section 34
A parenting plan must be in writing and signed by the parties to the agreement; and
may be registered with a family advocate or made an order of court. 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 be in the prescribed format and contain the prescribed particulars and be accompanied by a copy of the plan.
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 be in the prescribed format and contain the prescribed particulars and be accompanied by a copy of the plan and a statement by a family advocate, social worker or psychologist contemplated to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist or 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.
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 on application by the co-holders of parental responsibilities and rights who are parties to the plan, by the child, acting with leave of the court or in the child's interest, by any other person acting with leave of the court.
Refusal of access or refusal to exercise parental responsibilities and rights - Section 35
Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22, refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as must upon any change in his or her residential address forthwith in writing notify such other person of such change. A person who fails to comply is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
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Friendly Divorce is that possible?
July 26th, 2010Divorce can be on friendly terms
An excellent article recently appeared in the Washington Post concerning the importance to severe marriage ties in a friendly manner.
Some of today's divorcing couples, who may have witnessed some wretched family separations, are vowing to do it differently. Even if their own parents didn't divorce, many kids saw how hard it was on their friends.
So more couples are opting for a friendly divorce, whether through mediation, collaboration or even do-it-yourself methods. And the majority of couples choosing friendly divorces in the United States are those with children.
Divorce no matter how friendly is still an emotional issue. However couples do it, the process should be more amicable. At the end of the day, you can save time, money and increase the odds that you might actually still be friends in future. And the kids are the biggest beneficiaries.
This new kind of divorced mom and dad might attend parent-teacher meetings together and share calendars electronically so Dad can arrange to take the kids when mom's out of town on business.
Traditional vs friendly
Most divorce cases still are handled in the traditional adversarial way, with attorneys on each side trying to get the best deal for their client, often through nasty disagreements over care and contact (custody), child maintenance, property settlements and finances. Divorcing couples typically aren't feeling friendly toward each other anyway, and contentious experiences in court can make those feelings even worse.
"It makes it almost impossible to have a civil relationship going forward. You don't easily forget what it's like to be cross-examined by your spouse's advocate," says family law attorney Bertus Preller, who co-founded eDivorce a do-it-yourself Divorce Platform in South Africa. "It sets them up for years and years of not being able to communicate well."
Mediation is another kind of a friendly divorce. Proponents say it reduces the emotional costs on everyone; both children and adults start their new lives on relatively stable ground.
A typical traditional divorce can stretch out for months - even years - and cost both parties R 5000 - R 150 000.
Over the past 30 years, DIY divorces popularity has grown as an alternative to going to attorneys across South Africa.
Setting the tone
How parents interact and handle the kids during the initial separation and early in the divorce sets the tone for the years ahead.
Research shows that kids who remain close to both parents are less stressed by divorce, and dads who are connected to their kids are more likely to keep up with their obligations, financial and otherwise.
Compiled by eDivorce, South Africa's top online divorce service
Interview with Bertus Preller Top Divorce Attorney Cape Town at Abrahams and Gross
July 25th, 2010Interview with Divorce Attorney Bertus Preller at Abrahams and Gross Attorneys Inc. Cape Town
Why do people from all over South Africa come to you for divorce and family law matters?
Well, firstly, I think it is because I care, work hard and because I am involved personally in my client's cases. I am only as good as the team behind me and my office staff really helps in alleviating a lot of the pressure as well.
What is a typical day look like for you?
Well, I start at 5am in the mornings doing my normal correspondence until 7am, drop my daughter at school at 8 am and start seeing clients from 9am till 3pm by the hour, other days I will be in Court. Evening times I use to read and blog on Family Law matters and spend time with my family.
You are also the founder of eDivorce a do it yourself divorce platform in South Africa, can you tell us more about this?
eDivorce is a document generating platform that generates all the documents that you will need to conclude an uncontested divorce in South Africa.
So how does the eDivorce process work?
A spouse will browse a web page, http://www.edivorce.co.za fill in a questionnaire and the technology platform will then generate all the necessary documents such as the Summons, Particulars of Claim, Settlement Agreement, Family Advocate Affidavit, Notice of Set Down and Statistics Form. A team of experts then checks whether the documents were drafted correctly and release them to the user. The document generation process takes 24-hours and the divorce itself, depending which court you file in takes between 3 - 8 weeks.
How many divorces have you handled so far?
It is difficult to say, more than 300.
What are the reasons why people divorce in South Africa?
There are many reasons, but the most frequent reasons are infidelity, physical, emotional or verbal abuse, money, in-law problems, life transitions, addictions, childhood baggage, different life agendas, life overload, mid life crisis and controlling behaviour.
Are you not concerned about the high divorce rate in South Africa?
Yes, definitely. I believe that a healthy society is built on a solid marital relationship. That is why I would urge my client's always to reconcile if the slightest possibility exist to make things work. If that is impossible, then my roll becomes clinical and the interests of my client and the minor children come first.
Are people generally up to scratch with their rights in a divorce?
Yes and No. The internet and media have played a significant role in educating people on all aspects of life, so in many instances you will find that a party in a divorce matter will know what he/she will be entitled to claim, but in other instances people seem to lack that knowledge, especially women.
Don't you get subjectively involved in your clients lives?
In order to be successful you have to look at a case clinically. Like a doctor operating on a patient. You have to distance yourself from the emotional aspects. But yes, there are times that you are touched by the hurt of the parties involved, especially when there are children involved. So to answer your question, I am human after all.
Don't you think people give up to easy in their marriage?
It is difficult to say. It depends on the facts of each case. In a matter concerning adultery, it is very difficult for instance. People can forgive, but forgetting is rather difficult, so unless there is not a huge effort from both spouses to mend the relationship, it will not work and divorce will be inevitable. But then there are many instances where parties can mend their relationships and where opting for divorce would be wrong. Unfortunately life has become like a remote control, if you don't like the channel you simply click and change it, so if you don't like the relationship you click and move on, I don't think that is a good thing for society as a whole.
What advice can you give to someone going through a divorce?
Well firstly, when there are children involved you have to set the emotions apart and make decisions in the best interests of the children. Divorce is always an emotional circus and although how difficult it may sound, you have to think with your brain and not with your heart. Relationships are all about control, like using a remote to change the TV channels, one of the parties constantly changes the channels, the kids, the money etc. and that is where many problems surface.
Bertus Preller can be contacted:
Via email: info@divorceattorney.co.za
0834439838
Artificial Fertilisation and the Children's Act
July 25th, 2010Rights of a child conceived by artificial fertilisation
Section 40 of the Children's Act states:
Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation. Until the contrary is proved, both spouses have granted the relevant consent. Whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman. No right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when that person is the woman who gave birth to that child; or that person was the husband of such woman at the time of such artificial fertilisation.
The Act therefore provides that a child who is born as a result of the artificial fertilisation of a spouse using a donor gamete must for all purposes be regarded to be the spouse's child as if the gamete had been used for such artificial fertilisation. In other words, the donor's biological contribution will be ignored and the donor does not qualify as being the child's biological parent. There is also a presumption in the act that both spouses have consented to the fertilisation. The Act refers to 'spouse' or 'spouses'.
Although the terms "married", "spouse" and "spouses" are used in the Act it is not open to the same Constitutional attack under the previous legislation. Therefore a child that is born as a result of artificial fertilisation in a legal same sex partnership in terms of a Civil Union is now treated in exactly the same method as a child who is born as a result of the artificial fertilisation of a spouse who is party to a civil marriage.
In the case of the artificial fertilisation of an unmarried woman with a donor gamete or donor gametes, the child will be regarded as the child of his/her unmarried birth mother, but the biological contribution of the donor of the gametes is not disregarded and the donor may well qualify as the child's biological parent.
No rights, duties or obligations is bestowed upon a donor in respect of the child born as a result of artificial fertilisation save for what was pointed out above, unless the donor is the child's birth mother, or her husband at the time of the artificial fertilisation.
Paternity Tests in South Africa
July 24th, 2010
The new Children's Act confirms in Section 36 a presumption in respect of a child born out of wedlock. The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt. In the case of S v L 1992 (3) SA 713 (E) it was held that the phrase "in the absence of evidence to the contrary which raises reasonable doubt" means that whenever there is evidence to the contrary, the presumption does not operate or ceases to operate. This is also in line with the court's decision in R v Epstein 1951 (1) SA 278 (O), where it was held that a presumption operating "in the absence of evidence to the contrary" only requires evidence, not proof, to counteract the presumption. The Children's Act does not define the word "evidence", thus any acceptable evidence suffices, regardless of whether it is direct or circumstantial, however, it must raise reasonable doubt.
Section 37 of the Children's Act states that if a person in proceedings in which paternity of a child is challenged refuses to submit him/herself, or the child, to take blood samples in order to carry out a scientific test to prove the paternity of the child, then a presumption in our law exists in which the failure of such a party to agree to such a test may be used as evidence to prove the contrary. The effect of this section is that it compels a court to warn the person who has refused to have his/her or the child's blood sample taken 'of the effect' which such refusal might have on his/her credibility.
Refusal by mother to submit her and child to testing
In O v O, Friedman JP stated that there is no statutory or common-law power enabling the court to order an adult to allow a blood sample to be taken for the purpose of establishing paternity. Although there is still no such power, Section 37 obliges the court to warn the mother of the consequences of her refusal (perhaps that the man she is accusing of having fathered her child cannot be deemed to have fathered the child in the absence of a blood test). He would then in all probability not be ordered to pay maintenance for the child.
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