"Children can survive and thrive after divorce if parents can find the right way to manage their relationship with their children and with each other"
Why a Parenting Plan, and what is it all about?
Children in a divorce have various worries about this stressful transition in their life. Research tells us that the two most prominent issues children worry about when parents divorce are:
i) where and with whom they are going to stay, and
ii) what the new arrangements will be.
Children need to feel safe and secure during this time of change.
Structure, routine, consistency and affirmation are very important anchors.
Unfortunately in litigation parents tend to highjack the process of setting up a Parenting Plan to effectively care for their children post-divorce. They tend to want their own interest adhered to and not that of their children. They often claim their rights to certain contact time and care arrangements without considering the child's need. Too often Parenting Plans are a "cut-and-paste" annexure in an divorce agreement.
The child's needs and worries and special needs are not acknowledged. Even though parents know their children, they are often surprised to here some of the worries and needs their children have in a divorce process. In mediation, when including the child's voice and listening to their needs, a parenting plan becomes a valuable tool:
What children say when they can voice their needs in the divorce:
- "It helped to have someone listen to what I said, ... also they can pass it on to my parents, what I want them to know"
- "Each parent has backed off and calmed down a bit, mum is lessed stressed and now takes us to dad's place, I 'm spending more time with dad"
What parents say whe hearing the child's experience and voice:
- "They went into detail in the feedback about the boys and their relationship with their dad. My husband really heard what they said, he could see how it really was for the kids"
- "I heard their (kids) opinions, which were an eye opener. It gave insight in what they were going through. I do stuff differently now"
A Parenting Plan in Mediation is drafted putting the child first, their best interest is paramount! Here it is not only being Child-Focused, but Child-Inclusive. This means that the child's opinion and experience is listened to. The child can see the mediator (usually an an expert child-developmental counsellor/psychologist in their own right) that can assess the needs of the child and access the voice of the child. Very often the parents don't realise what the child is actually experiencing, especially when they are caught up in the own emotional turmoil. The feedback is given to the parents in aid of constructing a viable parenting plan. The mediator, when a mental health professional, can see the children, especially if trained in accessing the "voice of the child" in such circumstances.
A Parenting Plan is based on Sections 33 & 34 of the Children's Act no 38 of 2005 (find a link on the Family & Divorce Mediation page).
- Before this Act was promulgated parenting plans had no actual reference point and imposed ideas and expectations that were not always rational and in the best interest of the child. Terms such as custodian and sole custody has been changed to promote the concept that parents are co- holders of their children with equal responsibilities and rights. (Note: Responsibilities are put before rights in the act!)
- It is an agreement between the parents or legal guardians, (also referred to as co-holders) who hold parental rights and responsibilities. The agreement outline in detail the responsibilities and rights each parent holds regarding care, contact and maintenance in respect of their child(ren).
Parenting Plans should be drawn up by qualified professionals, they include Psychologist trained and experienced in this field, Social Workers trained in this field and if attorneys have training in Developmental Psychology/Child development they can also draft.
- It is very important to acknowledge the voice of the child in a Parenting Plan. Children from the age of as young as 4 years can be listened to* regarding how they experience the arrangements made on their behalf. Often having adults sit around a table and making arrangements on behalf of children ignore the emotional effect these plans have on their children. Knowing how your child feels and experiences the arrangements will help you as a parent to provide what is in their best interest.
*Resolve has qualified Mediators to assess the child's voice when drawing up Parenting Plans. they are experts in the field of Developmental Psychology and have been trained to assess children regarding the effect of Parenting Plans in their lives, they have experience in family matters and children's needs..
The advantages of a Parenting Plan and the Act governing it are that:
- It allows for joint decision making (no one parent, unless stipulated in a court order), has the power to make unilateral decisions
- There is not a sole-custodian, it is now seen as primary residence, and this can change over time
In Mediation parents are empowered to become co-holders of above responsibilities as oppose to litigation that creates more conflict and hurt between parents and ultimately flows over to the children.
All of the above is still reliant on the Best Interest Principle, Section 7, in the Children's Act. The child's best interest is paramount!
The Best Interest Principle, Section 7
The principle of the best interests of the child is one of the four pillars of the United Nations Convention on the Rights of the Child (CRC) together with non-discrimination (article 2), survival and development (article 6) and child participation (article 12). Article 3(1) of the CRC provides that
In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.
The best interest principle is also included in the African Charter on the Rights and Welfare of the Child (ACRWC).
- In Section 7 of the Children's Act no 38 of 2005 the following factors must be taken into consideration where relevant, namely:
- the nature of the personal relationship between-
- the child and the parents, or any specific parent; and
- the child and any other care-giver or person relevant in those circumstances;
- the attitude of the parents, or any specific parents, towards -
- the child; and
- the exercise of parental responsibilities and rights in respect of the child
- the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
- the likely effect on the child of any change in the child's circumstances, including the likely effect on the child or any separation from-
- both or either of the parents; or
- any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
- the practical difficulties and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
- the need of the child-
- to remain in the care of his or her parent, family and extended family; and
- to maintain a connection with his or her family, extended family, culture or tradition;
- the child's-
- age, maturity and stage of development;
- background; and
- any other relevant characteristics of the child;
- the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;
- any disability that a child may have;
- any chronic illness from which a child may suffer;
- the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
- the need to protect the child from any physical or psychological harm that may be caused by-
- subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
- exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
- any family violence involving the child or a family member of the child; and
- which action or decision would avoid or minimize further legal or administrative proceedings in relation to the child.
2. In this section 'parent' includes any person who has parental responsibilities and rights in respect of a child.(Date of commencement of sec. 7: 1 July, 2007)
What to include in a PARENTING PLAN?
- Decisions regarding their child(ren)'s medical, educational and religious care.
- Primary residence need to be addressed
- What is the agreement when parents move from the area they were located in when the Parenting Plan was established, what are their rights or restrictions to move?
- Parents agree on the time they will spend with the child(ren) during the week, on weekends, on Father's Day, Mother's Day, Birthdays, Public Holidays and during School Holidays.
- Each parent shall make a good faith effort to give information to the other parent about events and activities in their child's lives like school programs, concerts, award ceremonies, plays, sports events and other things the child is participating in. Sometimes this information may be at the last minute but this happens with children and each parent shall make an effort to let the other parent know so that they can attend or talk about it with the child.
- Both parents need access to school, day care, medical and other records of the child.
- Child Maintenance
- The type of spiritual involvement the parties want the child to have, the level of attendance in church, synagogue, or mosque is important.
Whenever possible the parents shall discuss the issues and attempt to reach an agreement based on what is best for their child at that particular time.
- If the parents are unable to reach an agreement on an important issue about their child after they have discussed it with each other, either parent may initiate dispute resolution by arranging for the parents to meet with a trained facilitator (FAMAC accredited) to discuss and try and reach agreement.
“A divorce undertaken thoughtfully and realistically can teach children how to confront serious life problems with compassion, wisdom, and appropriate action” Wallerstein & Blakeslee