DIVORCE & MEDIATION

FAMILY LAW MEDIATION

CHILD MAINTENANCE

DOMESTIC VIOLENCE

CHILDREN'S COURT

LEGAL DOCUMENTS

GENERAL LITIGATION

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Children and how they are affected by divorce

 

What will happen to the children upon divorce?

 

How children are affected by divorce is a question of huge importance to your children and, of course, to you and your spouse. These are uncertain times for any child and the golden rule we have for our clients is to NEVER to discuss or fight or even argue in front or in hearing distance of your children. This is sometimes easier said than done! When you and your spouse have come to that stage where a divorce is inevitable, arrangements should be agreed upon by both spouses before the final steps of divorce as to some arrangements with regards to the minor children.

 

Discussions with your spouse should include:

  • Who will be the primary caregiver?
  • With whom will the child(ren) stay after the divorce?
  • Where will the child(ren) stay during the day when you are at work?
  • Where will the child(ren) go to school?
  • Who (and how much) will support and contribute to maintenance?
  • How will visitation rights work?

 

This is where mediation is super beneficial as one of the outcomes of the mediation would be that both parties are in agreement about the way forward with the kids. If no agreement can be reached to some of the abovementioned questions, the Judge or Magistrate will make a decision after considering what is best for the child. The facts surrounding the divorce as well as the recommendations by the Family Advocate and other specialised parties can offer a valued insight into the best outcome for the child.

 

What is a parenting plan?

 

This is applicable only to minor children (under the age of 18). A parenting plan is a written agreement based on agreements between two people / parents who hold parental rights and responsibilities. In plain terms it means that it is a written document that outlines how parents will raise their child after separation or divorce. The parenting plan forms part of the divorce papers in the event of minor children being implicated in the divorce. Everything that is decided should be to the best outcome for the child.

 

Most parenting plans focus on describing parenting arrangements such as:

  • How decisions about the child are made (for example, jointly or individually but in consultation with the other parent)
  • How and when information is shared between parents
  • When each parent will spend time with the child (visitation rights and holidays)
  • How other parenting issues may be addressed, such as religion, boyfriends / girlfriends etc. This is where mediation is ultra-beneficial as one of the outcomes of the mediation would be that both parties are in agreement about the way forward with the kids.

 

Who is the Family Advocate?

 

The Family Advocate is a non-biased Family Law specialist whose main interest is protecting the children. They are employed by the South African Department of Justice to ensure that the rights of children are maintained.

 

What is the role of the Family Advocate in uncontested divorce proceedings?

 

With the situation of uncontested or undefended divorce proceedings, the Family Advocate will have to agree to / approve the parenting plan before a Judge or Magistrate will grant the divorce. The reasoning is that by approving of the parenting plan, he / she confirm that the arrangements are in the best interest of the children (minor children) involved. Every court is different and in some instances the Family Advocate would require to see the parenting plan or settlement agreement containing the details pertaining to the minor child(ren) about a week before the court date, where other Family Advocates would scrutinize it the morning before the court starts. Your divorce attorney would know the preference of the Family Advocate, or you could contact the court to find out.

 

What is the role of the Family Advocate in contested divorce proceedings?

 

When it comes to situations where there are disputes about care and contact of children, the Family Advocate will assist the parties / parents to reach a suitable and mutually satisfactory agreement. The Family Advocate goes about this by evaluating the circumstances through doing separate interviews with all the parties concerned – parents and children and even teachers if necessary. And yes, it is here where the child(ren) could also voice their opinions as to where they want to live and how they see the living arrangements etc. The Family Advocate will make recommendations in favour of the best interest of the children based on the information gathered.

 

Are the Family Advocate’s recommendations enforceable?

 

The recommendations are only intended to help the Magistrate or Judge who deals with the matter. Unless a remark or recommended action has been included in a Court Order, it is not enforceable by any means, but as a Magistrate or Judge has to deal with legal issues and the Family advocate works with these types of matters on a daily basis, chances are very good that the Magistrate or Judge would follow the recommendations of the Family Advocate.

 

How much does the Family Advocate charge for his/her services?

 

Family Advocates are legal officers that are under the employment of the Department of Justice and Constitutional Development of South Africa. A Family Advocates‟ services are free of charge.

 

We adopted or have children together?

 

If you have children, you are going to need a parenting plan and a parenting schedule. You will have to determine who will have legal custody of your children and decide who will make major decisions for your children after the divorce. You also need to figure out where your children will live, and set some basic post-divorce parenting ground rules. There are also separate forms that need to be completed before you get to the Court-stage and a Family Advocate needs to endorse all the decisions about the minor children.

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