South African Law provides that all determinations relating to a child must be made in accordance with the best interests of the child standard as set out in the South African Constitution as well as in the Children’s Act of 2005.
MEDIATING PARENTING PLANS
During the course of a mediation, the mediator will request each parent to put forward various proposals for consideration by the other concerning the potential arrangements that each of them would like to have put into effect to regulate the exercise of their respective responsibilities and rights over the child.
Once all the proposals on an issue have been put forward, the parents would need to discuss the viability of each proposal taking into account the needs and requirements of the child as well as any other factor which may be deemed to impact thereupon.
The legislature’s aim in requiring that the final agreed upon arrangements regarding the aforesaid is recorded in a written Parenting Plan is essentially so as to prevent post separation/divorce disputes arising between the parents on such matters as the care, contact, decision-making and other ancillary day-to-day issues regarding the child. These issues – if in dispute – congest the Court Rolls with unnecessary trauma to the parties and the child, as well as the potential for generating unnecessary costs which in many cases could be better utilised for the general care of the child.
THE PURPOSE OF A PARENTING PLAN
Primarily, the aim of the Parenting Plan is to:
- regulate the exercise of each parent’s parental responsibilities and rights in respect of the child ; and
- facilitate the preservation of the relationship between the child and each parent in the absence of unnecessary hostility and potential parental alienation.
A well crafted and comprehensive Parenting Plan has great potential to reduce the level of conflict between parents thereby potentially lowering the level of trauma normally experienced by the child in the aftermath of separation and divorce.
Worldwide the call is for Parenting Plans to be unique and specific to the needs and requirements of the individual family as opposed to the use of standardised template formats which tick all the boxes but do not seek to meet the specific needs of the family whose arrangement it is governing.
According to the findings of the American Academy of Matrimonial Lawyers, the research is clear that children experience emotional distress when they witness and/or hear their parents arguing; when their parents involve them in the divorce determinations; when their parents involve them in the dispute considerations as to parental fitness for residence and contact; where parental alienation is wittingly and unwittingly present; and where they are required to act as the go-between for their parents.
THE ROLE OF THE MEDIATOR
Ideally, the mediator will during the course of the mediation discussions on parenting issues assist the parties in moving away from discussions centered solely on parental positions and rights to more productive discussions where each parent is able to recognise the steps that need to be taken to create a post-separation/divorce home environment free from the stress factors normally associated with divorce and parental conflict.
See Section 7 of the Children’s Act 38 of 2005 for the Best Interests of the Child Standards