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I'm excited for us to have our his Conversation of the night. This is our Legal Matters feature, and it's a really important conversation to have around parenting but also the legally binding parts of co parenting, because oftentimes you'll find that many people out of rage, out of their hurt, you know, to be honest and not deviating for what's
been agreed upon. And you hear words like he's a crappy person, and so you know, I don't want anything to do with him, but unfortunately that's not how the law works. And so we're going to be speaking about a parenting plan. Once you have decided to go your separate ways with this partner that you had once planned forever with. Now you've got your children and you must stick to a parenting plan. Is that legally binding and
how does it work? Joining me for that conversation is a Claire Thompson, an attorney in private practice at WITS Inc. And she's a specialist family law practitioner.
Player Grievening, what's so so lovely to be with you this evening.
It's so lovely to hear from you at too, on this called Tuesday. I'm really excited to have our conversation today because there's so much about it that I actually I'm realizing I didn't know around a parenting plan. I mean, is this something that we see quite you know often? Is it a common thing among couples that have gone their separate ways but have kids.
Absolutely, I would even go so far as to say that in one or another form, a parenting plan is almost given when there are minor children involved, and parties are no longer in a relationship with one another, be it that they were married before, or be it that they were in a long term relationship or a life partnership with one another, or even if they didn't have a relationship with one another before their children were born
or their child was born. A parenting plan caters for all of the eventualities where people are no longer, where people need needed guidance and need a structure and a framework with regards to co parenting with one another.
Claire, is it a given?
So when you go to courts and you decide, you know, we're going our separate ways, and now we're figuring out what we're going to do with the kids and maybe this joint custody. Do you automatically then get told to have a parenting plan or is this something that each parent, depending on what they know and how much they know, then decide to have.
Well, I think it depends largely on how able the parents are able to co parent effectively with one another together.
So typically in a divorce proceeding, we will see that there is either a settlement agreement drafted which incorporates the same types of clauses that you see in a parenting plan, or a totally separate parenting plan is drafted, and in the context of divorce, that parenting plan or the clauses that you see in a settlement agreement that are typical of a parenting plan are then made in order of court.
But that being said, if a couple hasn't been married, it's not necessarily a given that a parenting plan will follow the end of the relationship, because it might be that the relationship ends, but the parties are quite able to communicate effectively with one another, they're able to put a plan together with one another bok out what their maintenance obligations will be. Various things and we can talk about what goes into a parenting plan if you would
like to. But if it is that a former couple, if I can say, are able to navigate the co parenting environment independently of having any expert involved, it's not necessary that a parenting plan is drafted, but it can be useful for parties even if things are going really well.
It can be really useful to put what is going well in an agreement so that if anything isn't or stops working, and if there's any sort of discord that arises between them, that they have a document to refer back to, Because I think from a legal perspective, very often we think about and though the things are going well, now do we have a framework in a guideline for if something is to go wrong? And very often these documents are best negotiated when things are going well.
And this is why I'm asking, I mean, how do you know you need one? Because I'm sure that it's.
Such a good christ Yes, I'm such a good Christian.
I'm sure there's people that are that feel like they're doing just fine. How do you know maybe we should get a parenting plan?
Yet?
You know, I think I think if things are going just fine, and I think if children are older, so a sixteen year old maybe, And I say that bearing in mind that the age of majority is eighteen, so if it is we have much older children and things have been going well for a really long time. I'm not sure if it's entirely necessary. It might be, it might be a good thing to have, but I don't
know if it's necessary. If a couple or for former couple, let me say that are doing well, they've been doing well for a very long time in the absence of a parenting plan. I don't think you know, after listening to this conversation that it's necessary to, you know, rash out brief and attorney, go to mediation, get somebody to
help you draft a parenting plan. I don't know if that's necessary, but I would say for parents of little's even if things are going well, consider scheduling a session with an attorney, with a mediator, with somebody who is able to talk you through a framework, perhaps together. If things are going well, I would suggest that it's a good place to go. The family advocate, which is a free service that is offered as part of the judiciary, is able to assist people with drafting a parenting plan.
And the reason why I say that parents of at least might benefit from this is because they have a long time ahead of them and things change, Relationships change, new partners enter the picture, money comes, money goes, People
might want to move to a different country. And I think these are the sort of things that we workshop often when we talk about the terms of a parenting plan, that we negotiate, and even if things are going well, as I've said, because things are going well, it might create the ideal environment for people to come together and talk about what might be points of difficulty if things
were to go wrong. And if I'm to reference some of the other conversations that have been had on this show before, it's like drafting an anti nuptial contract before you get married. Don't draft an anti nuptial contract with the intention of getting divorced. You draft your anti nuptial
contract to make sure that your financial affairs are in order. Similarly, with regards to a parenting plan, you draft a parenting plan not because you think that things are going to go badly, but to create a framework if it is that there is a if there is tension, that arises where there is a structure that needs to be referred back to.
Okay, so we're saying we draft as parenting plan before things get messy and before they get idy.
I think it's a good idea. I mean, it's not the only time that parenting plans are drafted. I would say more often than not, parenting plans are drafted when things are not going well. But it makes for a more difficulty environment because people are often not in a frame of mind where they are able to make decisions, which are where there is give and take or where there is compromise, because when there is conflict, very often people feel like they have to stick to their position.
Whereas I think when things are going well and it's flowing, sometimes it's easier to navigate difficult spaces together when things are going When things are going well. If things aren't going well, so for those listeners who are listening to this, thinking, gosh, I missed the boat. Things aren't going well. I never drafted a parenting plan. What do I do now? This
is the time. So if things aren't going well, it's the ideal opportunity to draft a parenting plan and to engage either a professional be at an attorney or a psychologist who is a specialist in this field, or social worker that's a specialist in this field. We aternatively to refer to mediation or to go to the family advocates officers.
Well, speaking to Claire Thompson, she's an advocate and private practice. She's also a specialist in family law. Talking us through something called a parenting plan, often used by people that were a couple and have kids and now they kind.
Of need to put the rules of.
What happens and who does what and how we go about this on paper in the form of a parenting plan. I'm going to open the lines zero double one double a three oh seven oh two and zero two one double.
Four six five six seven.
If you are in a situation where you believe you need a parenting plan and you have questions for a Claire, get in touch with us, call us on that number or send us a voice note on zero seven two seven oh two one seven oh two. And if you're wondering what needs to go into a parenting plan, also get in touch with us on those numbers. Claire, So, I mean, I'm really interesting, I'm interested in what this plan actually looks like, you know, is it a?
Is it a?
Is it?
Two columns with coromotol and you know, and a partner or former partner and you do this, and you do this and you have the kids on you know, Monday to Friday, and you know what goes into it? And how detailed did these plans get?
They can get really really detailed. Maybe I'll start at the end first. They can be really really detailed, and it must cater for that family's unique needs. And I think when we think about our own families, because we very often have the most insight into our own families, our families are complicated. You know, we all have our own likes and dislikes and foibles. And if some people like to travel, for example, some people prefer to stay
at home. With regards to parenting, some people discipline in a particular way, other people discipline in another way. Parenting plans can encompass everything from the basics, which I'll call care, contact, guardianship, and maintenance, which are the primary structures with regard to how it is that parties interact with one another who both have children together, but it can also go into far more detail, things like religion, discipline, diet TV watching for example, use of social need.
Diet.
I mean, if you think about vegetarianism, for example, even religious restrictions with regards to what food can be eaten and not eaten. If a couple are of different religions, or if they have different dietary structures, if I could say that one's a vegetarian, one eats meat. How is it that this child is parented between two households when only meat only vegetables are eaten in one house, but
meat is eaten in the other. And if the parent wants the child to be brought up as vegetarian, for example, what happens when the child goes to the mettea parent's house. So it might feel like a very very small example when I'm talking about it now, but the reality is that these things are really really important in people's lives, and if they're not giving the appropriate context, if they're not given the appropriate gravitus, it can be an area
where conflict arises. And what we want to avoid is conflict one because it often spills out into the child's life, which is something we want to avoid. But we also want to set these people up for success. We want to make sure that as they progress through their co parenting journey with one another, but they're able to do so well, and they're able to do so effectively. And I think whilst it is that you could possibly draft a parenting plan yourself, and you could refer to the
family advocate for comment, for example. So you're often beneficial to get an expert involved in some form or another to give you some guidelines as to what it is that we should be thinking about, because for some people listening, you might think diet is not an issue for me, but something else might be social media. I think you know, I was listening to your intro earlier when you were talking about suicide and the risk for teens with regards to social media, such a big topic at the moment
for so many people. It requires parents to be on the same page with regards to how it is that they are going to annow a child between a teen to engage with social media, what the boundaries are, what the parameters are, because children are also aware of what's allowed in one parent's house may not be allowed in another parent's house, and they may play the one off against the other if the parents are not aligned with one another and so for parents to come into combined
space or collective space with a facilitator to talk about these things so that they were both able to understand each other's perspectives, the potential risks that are involved, and then to make decisions on that basis. It can be a really really positive experience.
And what happens if you don't agree, you know, I'm sure their parents say no, I want my child to be raised Buddhist and the other parents says yeah, but that's not what I want.
What happens then.
It's exactly how things often go. And very often people before they have children not able to tolerate one another's differences very well. Single people, married people are able to tolerate these things and give one another the space to be autonomous even though they're in a couple. If I can express it like that, coming into that same picture when a child is involved changes the dynamics dramatically. Sometimes sometimes people are able to continue to navigate that space quite successfully.
For others, it becomes fraught with tension, and under those circumstances it's absolutely necessary for the matter to be referred to somebody or something to navigate that with them. My first recommendation is always mediation, and it's just generally becoming more and more entrenched in our legal system that mediation should be the first port of call before any sort
of litigious process is undertaken. That being said, it is not always appropriate for all people, and sometimes a matter needs to be referred to the Children's Court for example, or the High Court in order for the court to make a determination. But to your question about religion, for example, it's very very difficult for a court when looking at two parents, one of whom might be Buddhist and one might, for example, be atheist, to say, well, one is better
than the other. And so the role of the professionals that are involved in helping parents navigate through that space is to try and find an environment that is supportive for the child and that doesn't cast confusion for the child, albeit that the parents have different belief systems or structures in their homes that a child is required to live with when they are with a respected parent.
You know, just speaking about how how detailed parenting plan can be, I mean, you know, sometimes when parents, even if it's the parents that are you know, that have decided that they're going to be proactive and do it before there's squabbles and fights. I'm reminded of a scenario.
That was dealt with in one of them.
I believe it was show where one of the parents or you know.
The lady lives with the child.
She has two children by two different men, and the one father of a child wanted to take the child on holiday, and she said, well, you can't take the one child in holiday because then you know what happens with what happens with the other child, and you know, it's it's just it's going to make the situation so
bad here in my in my home. So if you don't, if you can't take the both, you can't take the one, right And I'm wondering is this even something that can be preempted in a parenting plan, things like what happens if I want to take one child? You know, like, can we even plan for situations like that?
And I don't think they can plan for all eventualities in the absence of the proverbial crystal ball, it's just impossible to foresee what the future holds. And I think if we are, we only need to look back five years to remind ourselves of that. Nobody foresaw a COVID pandemic. Nobody foresaw what what that would bring up for people
who were co parenting with one another. And just to give you a short example of what that looked like, children were with one parent and lockdown happened, and the child should have been moved to the other parent's house, and the question was whose house should the child stay. Nobody could have anticipated that. Nobody could have anticipated how diverse people's views were on the vaccinations, for example, on wearing a mask, on going to school, on being allowed
to go to the grocery store with their parents. Nobody could have foreseen the challenges. But we arose, or that arose at that time. But I think, and I've made reference to having a shared language with one another often before, I think it's important to train. If I can say, if we can liken having tough conversations to going to gym. The first time you lift the weight, it's difficult, but it gets easier and easier and easier over time because
the muscle develops. And similarly with regards to difficult cons stations, people don't automatically have a shared language, a shared discourse, a shared strategy with one another. The first time that conflict arises, if they haven't had an opportunity to train. Now, you don't run a twenty five k marathon if you've never taken a dog around the block. So you need to start somewhere in order to get better, so that if the conflict arises, there is already some sort of foundation to work from.
And so this is.
Why I would encourage people who have young children who are co parenting with one another, who think, Okay, things are going really well, do I really need to do this? I would encourage you to engage in the process anyway, because working through some of the issues allows for that shared language to develop, allows that shared strategy to develop, allows us to contemplate some of the things that we
imagine come up that might feel difficult for us. That doesn't matter that it doesn't mean rather that we've got it all covered and that we've got a parenting plan that's locked down for the rest of that child's minority, not at all, but at least we know how it is that we can navigate through things that are a little bit difficult because we've started practicing that.
We're taking your calls on zero, double one, double A three seven, oh two or on two to one double four six five six seven. Do you have a parenting plan with your co parent? Is it working for you? And if not, why do you think it's not working? And are you considering getting a parenting plan? I know many people and when it comes to co parenting, are learning as they go.
No one plans to be just. I suppose that there are.
People maybe who plan to be co parents, but ideally I think many people you know would like to raise their children together.
But life happens. So let us know.
Do you have one? Are you planning on getting one? Are you struggling with your partner and considering getting a parenting plan? Zeritible on W three oh seven O two two one five four four six five six seven. I want to come to this now, Claire. So I mean, we've got the plan together, now, we've agreed, and we've gone into as much detail as we possibly can. What then happens when one parent decides to deviate and sort of not keep their end of the bargain.
I think the first thing, maybe just to take one step back, is what do we do after the parenting plan is drafted? And that choice is another one that faces parties there are three choices. You can keep it in a file between you, You can keep it in a safe place, can keep a signed version, and you can refer to it as your as you're going, as your framework, or you can have it registered with the
Office of the Family Advocate. The family advocate will consider it and consider whether the clauses in the terms that are contained in that agreement are in the best interests of the town. If there are clauses that the family Advocate does not believe are appropriate, they will give feedback on that the family. The Office of the Family Advocate will register that parenting plan, and then it's a registered
parenting plan with the Office of the Family Advocate. One reason why parties might want to take it a step further and have it made an order of court is that having something made an order of court makes it enforceable. So it elevates it from an agreement that is inter parties or between two people to something that is a lot more weight he because it brings with it consequences if the provisions that are contained in that agreement are not adhered to, And to your question, what happens if
somebody deviates? If it is that there is a parenting plan that has been made in order of court. There is then a remedy for the aggrieved party to go to court and say, the person with whom I am co parenting has deviated from the parenting plan and I want them to be held responsible. What that responsibility looks like depends on what it is that has gone wrong. In some instances, it might require the parties to go to court and a court will then make a decision.
In other instances, it might be the consequences of something as serious as a criminal charge, and so deviations are diet for exams are unlikely to render a criminal charge unless there are very very specific reasons why.
That would be the case.
But things like not paying maintenance, for example, if there's an agreement in that parenting plan about how much maintenance is paid and by who, and the maintenance pay are defaults. The consequences of that are contempt of court and so seriously that a court can order imprisonment or a fine if it is that the person doesn't pay maintenance. So there are different potential outcomes depending on what parties do with the parenting plan after it's been drafted.
All right, let's take a caller. Let's take Peter, whosin Joeberg.
He says he's about to get married and he also wants to adopt his wife's son. Peter, thank you so much for joining us. Peter, go ahead. What's your question? What's the situation?
Yeah, the situation is the father of the child of my girlfriend's child is not involved apparently in his life for the past five years. So as I'm getting married, I need to find out if if I adopt the child, would there be a problem if for me to officially adopt the child without the father coming back and interfering, if there is no parent or agreement between the father and the mother of the child.
So the father's not involved at all at all.
They went separate ways, and the child has got the mother's say nay, And the child is being staying with the mother and being supported by the mother without any involvement of the father although there and once in a while comes to visit the child or takes the child to commit the other cousins, but in terms of financial or difficulture about the mother is not there.
And you fear that.
One day he'll wake up, as maybe do, and say, you know, this is my child he is.
And the problem is, if I keep with ms, he hears that we're getting married, why does he have to come out and say no, he can get married to the woman, but I want my child.
Sure, Okay, all right, let's let's let's hear I mean, Claire, you hear the situation.
I think it's a very late layered situation.
Absolutely, if I can just ask one question of Peter, if he's still on the line, is the biological father's sorry I fata is the biological father's name.
On the birth certificate of the child?
He is on the unabridged pacertificate on the unabridge.
Okay. So the legal position is that I can't ask one more question. Were the parties married when the child was born?
When the child was out of wedlow.
Born outside of the marriage. So the first thing.
Had the problem, Cary, But yeah, he's just saying they never got married.
Okay.
So the.
First hurdle to adoption is going to be that the biological father of the child is likely to be deemed in law the co holder of parental rights and responsibilities.
He would need to satisfy the criteria of Section twenty one of the Children's Act, which is that he was living in a permanent life partnersh with the mother of the child at the time of the child's birth, or that he has contributed to the child's upbringing, raising the child, the child's maintenance, and has consented to be identified as the child's father, and that consent to be identified is encapitulated in the recordal of the biological father on the
child's birth certificate. Now, in order for a child to be adopted, either the child needs to be deemed to be adoptable in terms of the Children's Act, or the
guardians of the child need to consent to that child's adoption. Now, if it is that we are to assume that the biological father is the holder of guardianship of this child, he would need to consent to the adoption of the child, which means that he would have to go to Children's Court and go before a magistrate and confirm that it was in fact his intention to have the child adopted.
Because the consequence of adoption is that the child's birth certificate is amended to reflect the name of a different parent to that of the parent that is the biological parent of the child in this case, so it's very important to consider that in the absence of this father agreeing the child would need an application would need to be brought to to have this child declared adoptable, and the biological father's presence, I think think may or may
not be a significant factor as to what the outcome of a matter like this would be.
Okay, maybe let's let's let's go step by step. So what does he have to do?
First? Step one, what does he need to do?
And then step two, so he knows exactly what he should started doing in terms of process.
So to I imagine this would be quite a difficult point of departure. But to ask the biological father whether he would consent to the child's adoption, because adoption would have the effect of having that man's name removed from the birth certificate and it being substituted with another parent's name. And so to ask the question first and foremant whether the biological father would then consent to the adoption of
the child. And I said that it's difficult because the fears that people very often have is to make that to make that contact would awaken the desire to for this for this person to come back into the child's life. The alternative. The alternative would be to approach the children's court and ask for the children's court to deem that child to be adoptable. But again, the hurdles to overcome for a parent would be very, very high, and it's
certainly not a guaranteed process. I suppose, I suppose my question would be with regard to whether or not the biological father would be prepared to consent to that child being adopted.
Peter, Yes, yes, you can go ahead.
Yeah, you know, I just want to clarify there as the adoption in terms of you know, the African culture, when you get married to a woman with.
A child, to either.
Take care with the child and later on, especially where the child is a minor, you do want to be able to you know, there are certain technical things. If you want to take the child overseas who is in a different surname as hers, or you want to put the child in a certain investment who does not share a surname with you, it becomes technically challenging. So now it's easier if the child, if you get married to the child, the child changes the surname like the mother
to your surname. Yeah, child is sharing the same name with the mother, you know, and.
Just to clarify for for Claire, but if I get married to the child, you mean what they say the man, Yes, So I don't even know how to explain that from the African context, but basically it's the lobola that you would take out in addition to the love for the wife or for your bride, for your for the child as well, and then automatically, you know, the assumption is
then the child becomes yours. But then there's this legal process, Peter, and I think there's no going there's no running away from having to somehow approach him, you know, and and and speak to him about that.
And yah. Yeah, good luck, Peter, good luck with their process.
Thank you, thanks for the advice.
Yes, no, no worries.
Let's let's take a call from anonymous as well, who's got a question on family advocacy. Anonymous, good evening, and welcome to the show.
That's for the topic, folks. Now, quick, my partner somebody and according to the arrangement, obviously there is but the other party is not pulling in you know where visitations. They're very quick when it comes to them going to my partner. Now, this also okay.
We'll just wait, and I said, so we're all on the same page. So this is your partner.
You've got a partner, yeah.
And there's a child. Uh huh, and you had a did you have a child together?
No?
No, okay, she has a child from previous relationship. And you're saying, now.
Secret, he's not getting her part of the deal going Where the father of the child? Yeah, you know, I say, power also comes into play. He's somebody who seems to be connected. Now the child would be get away from my partner for weeks from end and when they do visit, listen, it's a two day visit and nothing more than that, you know, And you know it seems us very much powerless. You know, we're considering what I've just said, where there's
also a power play. You know, there's somebody who you know, we tend to feel that on the law side, it would fall onto him.
I don't know what he's doing.
She's now let me just turn into the story. She is from one of our neighboring countries, one of our countries within South Africa. You know, I don't want to go into.
There's only one country.
Right, So that was used against her as well. We're even in the court she was deemed to be a foreigner. You've got an essay, I d she's a local and or these kind of things have been used against her to a point where, like I said, you know, at times we just feel destiny. Yeah, how long we don't?
And now this is really much affixed the kid. You know where we were we I would just like to be given his wife on such I heard you mentioned in the family advocacy and before and there about to go to go out the whole thing.
So so what would you like to see happened? And onus really quickly?
The part you know its responsible or shape you know, as I said, when it comes to that printing plan, you know where it's limited towards my partner. Yeah, and you know I've made those with it. The fact is, you know, the power.
Plays so so so so so they do have a plan in place. It's just like he's not he's not keeping as into the bargain. Is that what you're saying? Yeah, yeah, okay, And and you want to find out how to compel him to do so.
Yeh, and how to work around it, you know, and before we get big options get better options on how to tackle the whole patient plan.
Yeah, it sounds like it sounds like it's an entrench pattern, and it sounds like it's been going on for a while. And it sounds as well like some of the court processes have frustrated you, you and your partner to some extent as well. You've mentioned that, you know, with her being a foreigners, that there's been some sort of discrimination. I think one of the questions that I would have is do you have appearancing plan and has it been made in order of court?
It?
Does she have apparence in that?
Yes, yes, you know werevisitations were bit and all, but it's not being the.
And is that parenting plan an order of court? Yeah, in the children's courts when the.
High Court it went to a High court, because I remember she spoke about you know, it went to the High Court.
I what what needs to follow after a parenting plan is made an order of court? If there is non adherence to that parenting plan, then there needs to be some sort of contemp proceeding that follows from that point. So that is to go back to court to say to the court there is this order in place, but it is not being a dared to and to ask the court to to to either bring about consequences for the non adherence to that or for there to be
another order that's made. If it is that there are concerns rates and I don't know whether that whether this is a feature of your particular scenario, but it is that the other side is, for example, to raise an issue to the reasons why parenting is not being done in the way that it was ordered in terms of
a parenting churn. It might be that there is a need for an investigation to be conducted, either by social work or a psychologist, to an expert in their field, to determine whether or not the allegations that have been made by the one party against the other are.
In fact correct or not.
If it is that that is not the case and it's just willful, then we need to bring about contempt proceedings against the other parent and for there to be consequences that are bought.
To be.
Claire, thank you so much.
I know that there as I as I as I thought, so this wasn't enough time to get through this, but very quickly, just let us know where people can find you if they need further assistance.
People can give us a call on your double when zero went zero, zero four hundred, or they can pop us an email at family at Witsinc. Dot co dot CDA.
That's Claire Thompson. She's a family law practitioner and she's an attorney in private practice at WITS Inc. Thank you so much for joining us a conversation there on parental plans, and I hope that this has ignited thoughts if you were not already thinking about it.