When a couple decides to get a divorce, the focus is often on their relationship and the reasons for the breakdown in the marriage but, according to the South African Constitution, the rights of children are extremely important and parents need to make sure that they are upholding them during divorce proceedings.
Children have the right to family or parental care and parents need to make sure that when deciding on parenting plans as part of their divorce agreement, their children’s best wishes are treated as of the utmost importance.
Under the Children’s Act, parenting plans can relate to any matter around where and with whom a child will live, the maintenance of the child, contact between the child and their parents and the schooling and religious upbringing of the child.
In practice, the child’s best interests can be overshadowed by the divorcing parents’ needs.
Even if parents get help from professionals to decide what is in the best interests of their children, they are usually not satisfied with the result until it reflects their own personal interests and needs.
The Children’s Act says that a child, depending on his or her age, maturity and stage of development, and a person who has parental responsibilities and rights for that child must be informed about any action or decision concerning the child.
The law also says that if a child is old enough and mature enough, they can be involved in any important decisions about their future.
The rights of children to express their views and to be heard in an age-appropriate manner is also upheld in the United Nations Convention on the Rights of the Child.
However, despite this clear legislation, very few legal professionals consult with children when preparing parenting plans on behalf of their clients and don’t hear first-hand what the children’s needs and wishes are.
While many legal practitioners may not have the necessary skills to engage appropriately with children, the risk of not meeting with the children who are the subject of the parenting plan can easily result in a plan that is parent-focused and not necessarily in the best interests of the children.
A parent might also be incapable of focusing on what is in the best interests of their child or children in the midst of the emotions that accompany the breakdown of a marriage.
The volatility of the situation often does not lend itself to mature and wise parenting decisions.
Taking this into account, the Children’s Act gives guidance to professionals on the content and formalities of parenting plans.
In preparing a parenting plan, it is essential that children, where age appropriate, have frequent and meaningful contact with both parents.
It is also important that all aspects of childcare and contact are dealt with in enough detail to limit the possibility of conflict between parents.
This includes things like schools being notified that two sets of information, invitations and documentation need to be sent the parents; the terms of residency and contact should be clearly stated; transport arrangements for children should be set out in detail; and, where possible, the children should be cared for by parents and not secondary care-givers.
Parents should work towards dealing with one another civilly if issues come up about their children, and the contentious matters around the divorce shouldn’t be discussed in front of the children, if possible.
Parenting styles should be agreed up front and, if parents disagree about differing parenting styles, a list of guidelines should be drawn up.
Parents should make sure that they don’t alienate the children from the other parent in any way, and must try to always respect the terms of the parenting plan and the other parent’s rights.
By following these guidelines, parents can legally part ways without doing irrevocable damage to their children and can potentially lay the groundwork for a peaceful and stable upbringing for them.