PARENTING PLANS FOR DIVORCING OR SEPARATED PARENTS

Sections 33 and 34 of the Children's Act 38 of 2005 makes provision for the parents of a child to stipulate in writing the parenting and living arrangements that will be followed in respect of that child. 

 

WHAT IS A PARENTING PLAN ?

Essentially a Parenting Plan is a written document entered into between co-holders of parental responsibilities and rights providing guideline on the raising of the child as well as on the allocation of parental responsibilities and rights concerning that child.

WHAT IS THE AIM OF A PARENTING PLAN ?

The primary aim of a Parenting Plan is to provide certainty and predictability for the child as well as for the co-holders of responsibilities and rights as to how things will work in the future insofar as that child’s life and living arrangements are concerned. In order to be effective the Parenting Plan needs to be tailored according to the unique needs and requirements of that specific family unit - bearing in mind that each child forming part of that unit may need to have their own set of specific requirements taken into account in the Parenting Plan.

WHAT ARE THE IMPORTANT CONSIDERATIONS FOR A PARENTING PLAN ?

When drafting a Parenting Plan specificity is to be preferred over vagueness so as to ensure increased security for the child and decreased possibility of future parental discord. By same token though, sufficient flexibility should be permitted within the Plan to accommodate unforeseen situations that may occur from time to time.

Having regard to the constitutional imperative of best interests of the child and the need for both predictability and flexibility within the Plan, co-holders of Parental Responsibilities and Rights would be wise when drawing up the Parenting Plan to gain the input of a relevant professional be it a Psychologist, Social Worker or Family Mediator.

WHAT ARE THE AREAS THAT SHOULD BE COVERED IN A PARENTING PLAN ?

The Children's Act does not stipulate the areas that would need to be covered in a Parenting Plan leaving this to the discretion of the parents. From a practical perspective though the areas that should ideally be dealt with in the Plan – bearing in mind that each family’s Parenting Plan will be distinct based on their own specific needs – include the following:

• The General Parenting Values That Are Important To The Parents In The Raising Of Their Children

• Parenting Styles Including the Mode of Communication that the Parents would like to have put in place in respect of their Communication with the Children

• The Place Of Residence Of The Child in other words whether there will be a Primary or Principal Place of Residence for the child or whether Residence will be Shared on a 50/50 basis

• The Child’s Contact With The Non-Residence Parent. The Inclusion of a Flexibility Clause for Contact on Other Occasions on Timeous Notice is always advisable.

• The Child’s Contact With Its Extended Family And With Significant Third Parties

• General Transportation Issues For Contact Periods And General Day-To-Day School and Extramural Transportation Needs

• The Mode Of Communication Between The Parents in respect of the Day-to-Day Life of the Child Including whether or not Joint Family-Meetings will be required herefor , The Sharing of School Reports & School Photographs; The Sharing of Information Concerning the extra-Curricular And Recreational Activities of the Child

• The Process of Decision-Making In Respect of the Child Including A Delineation Of Those Issues Requiring Joint-Decision-Making

• The Mode Of Future Dispute Resolution In the Event of Deadlock Over a Parenting Issue or a Provision Of The Parenting Plan

• The Process To Be Followed In The Event Of A Medical Emergency Arising

• Child-Minding Options and The Process To Be Followed For The Screening and Appointment Of Potential Child-Minders. Additionally whether the Parents Will be Given the Option of First Refusal for Childminding on a Specific Occasion Before a Third Party is Approached herein.

• The Procedure To Be Followed For Setting Up And Attending Meetings In Respect Of The Child With Schools & Other Significant Third Parties

• The Process To Be Followed For the Introduction Of The Child To Persons With Whom The Other Parent May Be Entering Into A Romantic Relationship

• Financial Support Of The Child including Medical, Educational and day-to-Day Support

• The Date For Future Review Of The Parenting Plan and whether the Plan will be Reviewed on a six-monthly or annual basis (This depending upon the age and developmental needs of the child). 

Most parents worry about the impact that a divorce or a separation will  have on the emotional well-being of the child. Research shows that for most children, this time is fraught with insecurity regarding their future and in respect of their concerns as to how their living arrangements as well as their contact with the other parent will be affected by the divorce or separation. It goes without saying that the stresses of divorce and separation on a child can be ameliorated by a well defined Plan that makes adequate provision for the future.

 For More Information on Parenting Plans Please visit www.traceyleighwessels.com

ALLEVIATING THE EFFECTS OF DIVORCE ON CHILDREN

The breakdown of a marriage or a relationship is always a traumatic experience for all concerned. The trauma of the breakdown may be particularly acute for children, in particular where the demise of their parents’ relationship has been characterized by heightened emotions, high levels of acrimony and an underlying instability and uncertainty as to the future.

It is well documented that children require additional support and assistance over this time to assist them in dealing with their own grief over the break down of the relationship and in coming to terms with possible new family structures and relationships that may have to be put in place. 

While certainty and stability are among the essential childhood requirements for optimal emotional and psychological health and development for all growing children, these two factors assume critical importance for the child who is subject to the unfortunate breakdown of his or her parents’ relationship.

Parents undoubtedly have the greatest influence in mitigating against the deleterious effects of the breakdown of a relationship by ensuring that 

• the child’s environment remains free of any parental alienation and/or manipulations
• the child is neither pulled into nor forced to witness any potential mud-slinging games between the parents or their extended family 
• the child is permitted to have and enjoy on-going contact and association with the non-residence parent
• factors such as financial security, constancy in parenting and discipline, routine stability, and certainty as to the myriad of day-to-day activities undertaken by the child remains constant and unchanging unless alteration is required thereto in the best interests of the child.

In order to reduce parental conflict and alleviate the stress caused to children through circumstance-instability, South Africa legislation through the provision of the Children’s Act 38 of 2005 which came into operation in 2010 encourages parents to come together and work out a written Parenting Plan regulating the incidence and exercise of their respective rights and responsibilities in respect of their children. 

Parents who are in conflict over their respective rights viz the children and parents who are experiencing difficulty in exercising their rights and responsibilities over the children are mandated to not only endeavour to obtain such plan but to do so with the assistance of a Family Advocate, Psychologist, Social Worker or suitably qualified Mediator prior to their approaching the Court for intervention therein.

Essentially the aim of the Parenting Plan is to regulate the exercise of parental responsibilities and rights as aforesaid, to clarify contact and other arrangements impacting on the children, to provide certainty for the parents and children alike regarding critical issues such as parenting styles, living arrangements, third parties’ involvement in the children’s lives, extended family members’ roles,  special occasions arrangements such as each child’s birthday, Mother’s Day, Father’s day, and any significant family days and also to provide certainty as to the financial arrangements that would be put in place for the children’s medical, educational and general day to day financial requirements.

The primary advantage of the Parenting Plan is that if the contents thereof is deemed by the Parents to be mutually beneficially viz parent-and-parent and parent-and-child, the children can look forward to an opportunity to grow up in a stable home environment albeit a single-parent home and to develop independent and meaningful relationships with both their parents the latter of  which is  in essence what parents in a marriage situation would ultimately deem in the best interest of their children.

For more information on Parenting Plans and the Legislative Requirements for Parenting Plans and Parental Responsibilities and Rights Agreements in terms of the South African legislation, please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com

HOW TO COMMUNICATE TO RESOLVE CONFLICT

THE POWER OF A SINCERE APOLOGY

Sitting in on a couple’s dispute is a privilege reserved for a few.  During a course of a mediation session the Mediator is not only confronted with the issues in dispute from both parties’ individual perspectives but the Mediator also has the opportunity to witness whether the dispute unfolds towards resolution or deadlock.   

As a third party witness to dispute development and the various mechanisms people use to eradicate a dispute, one key factor that has never ceased to amaze me is how the offering of a sincere and timeous apology to a wronged party has the potential to not only stop the dispute in its tracks but also move the parties towards an expedited process of mutual healing.   

Random and insincere apologies understandably exacerbate a dispute causing positions to be further entrenched thereby moving the dispute closer towards deadlock. The unfortunate reality hereof is that entrenched positions and deadlock on issues of rights and responsibilities often acquire an explosive life of their own necessitating third party adjudication and/or legal intervention which is not only time-consuming but financially prohibitive for most people.  

The solution for impasse resolution is often nothing more than the offering of sincere apology to the offended party. The essence of the sincere apology being that it is unreservedly made without the assignment of moral blameworthiness or fault..

In a nutshell, in order to be classified as sincere, the apology must:-

1. Take into account the offended party’s experience of the situation causing offence;  
2. The offending party must resolve not to knowingly or wilfully repeat the action or communication causing offence;
3. The apology must be made unreservedly in other words it must not be dependent upon the offended party also apologising for their alleged role in the dispute or an aspect of the dispute (undoubtedly such course of action is recommended but if the apology is made on the basis that there be a counter-apology it is clearly not unreservedly made)
4. The apology must be made without justification or explanation for the past conduct or words spoken; and 
5. The apology must in addition be without correction or advice as to how the offended party should in the future act, speak or conduct themselves or how they should have at the time in question, acted, spoke or conducted themselves.

There is always the unfortunate possibility that communicating an apology may lead to the offended party assuming a moral high-ground and passionately pursuing further legal intervention. What the offended party chooses to do with the apology is neither predicable nor generally preventable but it is worth bearing in mind that from a court’s perspective, an apology is usually taken into account (its influence on outcome depending entirely upon the circumstances of the matter) and it will generally serve to act as a mitigating factor from a judgement and outcome perspective. 

As a rule though a sincere and unreserved apology timeously made has greater potential to release resentment, bitterness, anger and hatred and promote trust and dialogue - an essential requirement particularly where children, extended family and close-knit friendship circles are involved.

For more information hereon please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com

THE IMPORTANCE OF PREPARING FOR A MEDIATION

Working towards resolution of an issue in dispute is seldom achieved in a single sitting. Disputes generally take time to develop and equally, time is needed for complete resolution thereof. Mediation is a process – a walk towards resolution - it is not a 500m sprint. With mediation we are not seeking a winner for the podium but looking for long term realistic options that could ultimately provide a mutually beneficial outcome for all the parties involved in the process.

Preparing oneself prior to the mediation is always advisable particularly as this has the potential for ensuring that one is best positioned to experience the full benefits of mediation.

FIRST REQUIREMENT : UNDERSTANDING WHAT MEDIATION IS

As a starting point for preparation, parties need to do some research on mediation, they need to have an understanding on what mediation is, the role of the mediator and the parameters within mediation operates.

A party who is only seeking legal advice or clarity on the matter at hand and on how best to position themselves or their dispute, alternatively a party who is seeking someone to make a final decision on their matter will clearly end up frustrated by the process. Equally so, as mediation is resolution-orientated, the hostile party who merely seeks just another forum within which to continue the dispute will soon find much to their disappointment that the process has been terminated. In a nutshell what is needed is exploration as to what mediation offers and whether it is the right option for the parties.

Clearly with a court-mandated mediation, parties are compelled to attend the process. However a proper study on and understanding as to what mediation offers and the potential outcome of the process on long-term relationships, time and money may well still act as the catalyst for a successful mediation.  

SECOND REQUIREMENT : UNDERSTANDING THE NATURE OF THE DISPUTE

Having assessed what mediation is and is not … a party then needs to spend some time determining from their own perspective the nature of the conflict and the specific issues implicit therein.  

Having completed this assessment, a party then needs to try to assess what the nature of the conflict is all about from the other parties’ perspective and what are the potential issues for that party.

A list needs to be drawn up for those issues that both parties agree on and those issues that both parties disagree on.

Having spent time in gaining an overall understanding of the nature of the dispute a party should ideally then unpack the conflict - issue by issue - and determine whether any aspects of the conflict have potentially been exacerbated through misunderstanding, scandalmongering by third parties, falsehoods, fabrications or downright hurtful communication. A party needs to determine what the misunderstanding is, in what manner can/should this misunderstanding be rectified, whether supporting documentation would assist to clarify issues and what such supporting documentation would consist of, whether an apology or a retraction is required from anyone or to anyone and what would be the potential impact hereof if there was such apology or retraction.   

Furthermore having now gained increased clarity on the make-up and features of the dispute, a party should ideally spend time in consideration of possible desired outcome from both parties’ perspective. A hierarchy of potential outcomes should ideally be drawn up with advantages and disadvantages and probable time and cost factors listed against each outcome.

THIRD REQUIREMENT : UNDERSTANDING NEGOTIATING STYLES & TRIGGER POINTS

The prospect of being in the same room with a person that one is in conflict with can be an overwhelmingly nerve-racking contemplation and exercise. This is a normal sentiment experienced by many. Realistically, there is very little one can do to exert control over another person’s attitude, bearing or communication style, what one does however have control over is oneself and how one will react to the other party. In order to prepare for face to face meetings it is always a good idea for a party to consider the other party’s communication and negotiation styles and to determine what aspects thereof create an uncomfortability or an intimidation or act as a trigger for negative outbursts or responses. 

Having assessed this a party needs to plan on how they will react and handle themselves if this happens. Things that they may want to consider is asking for a short break in the mediation; pointing out the trigger-orientated actions to the mediator; requesting that the mediation be adjourned; communicating to the other side that they will no longer be responding to these attempts to cause them annoyance and that the other side might as well stop with such behaviour in doing this not only is the mediator now notified as to what one perceives as a trigger but the other party is also aware that the mediator will be watching out for such triggers.

It is a good idea to bear in mind that often that other party to the mediation is just as nervous about the mediation process and one needs to assess whether there are behaviours or things that one does that may act as a trigger for the other party that need to be avoided. Causing outbursts may generate short-lived moments of enjoyment for the party causing the outburst but if negative outbursts take place one needs to consider what the likelihood is of successful resolution of the dispute  – how much longer will the dispute continue – what would the collateral financial and emotional damage amount to and what are the options and likely outcome of resolution in a different forum – would the conclusion of the dispute yield better result in a litigation forum or a forum which works towards a mutually beneficially outcome.

Without doubt for the majority of matters the advantages of mediation far outweigh any perceived disadvantage of the process – bearing in mind that there will always be a handful of matters that are not suited to mediation and need adjudication by a Court of Law – but on the whole the advantages of mediation are manifold and preparing for this process will go a long way towards assisting parties in obtaining the full benefits hereof. 

For more information on Mediation and Preparing For a Mediation, please visit Tracey-Leigh Wessels’ website at www.traceyleighwessels.com