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SEO Packages India For Uplifting Your Business

by SEO Packages India For Uplifting Your Business on 07-16-2018 10:47PM in News from advertisers

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Clarity Clinic Arlington Heights

by on 07-09-2018 04:43AM in News from advertisers

At Clarity Clinic Arlington Heights, you will find thoughtful and compassionate mental health care through an integrative and team approach. Our clinicians ensure a proper diagnosis working collaboratively with clients to guide them towards the proper treatments, including pharmacological and non- [...]

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HARASSED, BULLIED OR ABUSED ONLINE? KNOW YOUR RIGHTS!

by HARASSED, BULLIED OR ABUSED ONLINE? KNOW YOUR RIGHTS! on 07-03-2018 07:53AM in News from advertisers

HARASSED, BULLIED OR ABUSED ONLINE? KNOW YOUR RIGHTS!

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THINGS YOU SHOULD DO POST-DIVORCE

by THINGS YOU SHOULD DO POST-DIVORCE on 07-03-2018 07:50AM in News from advertisers

THINGS YOU SHOULD DO POST-DIVORCE

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PARENTAL PLAN: YOUR CHILD’S BEST INTERESTS ABOVE YOUR OWN

by on 05-11-2018 02:59AM in News from advertisers

“Co-parenting. It's not a competition between two homes. It's a collaboration of parents doing what is best for the children”- Heather Hetchler.
Divorce or separation due to end of a relationship creates tension; anger and no proper communication between partners. Whether you are divorced or unmarried, one should always remember when children are involved it is not about you and your feelings but rather what is best for your children. Your problems with your ex should not be the problems of your children.
When children are involved they are left in the middle with issues that should not be of their concern. All they need to know is that their parents love them and want the best for them. “Think of it as an important business project; you don’t always love the person that you’re working with, but you work together to get the project done. Co-parents need to adopt this same business model when co-parenting their children” (quote by Kela Price). The best way to ensure that this is maintained is to have a parental plan in place to govern the relationship between the parents and the children.
Although parenting plans can be drawn up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner rather than later. It is important for children to have plenty of access to both parents. Where both parents have been actively involved in the child’s life before the divorce or separation, a more equal division of parenting time can occur. “This is probably one
of the most difficult challenges any parent could face – learning to love the other parent enough to make the children first” (quote by Iyanla Vanzant).

1. CHILDRENS ACT NO. 38 OF 2005

Before I go into talking about Parental Plans, lets do the most boring task of breaking down the legislation that governs the rights and responsibilities of parents focusing on the best interests of children.

The Act governs both the attainment and loss of parental duties and rights not only by the parents of the children but similarly in respect of other persons.
1.1. Section 18: Parental duties and rights
This section governs whether a person may have whichever full or specific parental duties or rights in respect of a child. The parental duties and rights that an individual may have in respect of a child contains the elements governing the duty and the right to care for the child, to sustain communication with the child, to act as custodian of the child and to pay to the upkeep of the child.
A parent or someone who acts as custodian of a child has the duty to manage and protect the child’s possessions and assets welfares, support or represent the child in managerial, pledged and other legal substances or give or reject any consensus mandatory by law in respect of the child.
1.2. Section 19: Parental duties and rights of mothers
In respect of biological mothers of children, whether married or unmarried, has automatically full parental duties and rights over their children.
1.3. Section 20: Parental responsibilities and rights of married fathers
In respect of biological father of children, whether married or unmarried, has automatically full parental duties and rights over their children.
1.4. Section 22: Parental duties and rights agreements
When separating, both parents have to decide with which parent the children are to reside and what the contact rights of the other parent will be.
Any person who acquires parental duties and rights in respect of the biological children, inclusive of other persons whom obtain guardianship, may enter into an agreement providing for the gaining of such parental duties and rights in respect of the children as are set out in the agreement.
A parental duties and rights agreement must be in the set set-up and encompass the set essentials of which will be highlighted in this article.

A parental responsibilities and rights agreement takes concluded and is a binding document only if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement. This will be further dealt with in this article.
1.5. Section 23: Assignment of contact and care to an interested person by order of the court
Any person has an interest in the upkeep, welfare or growth of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such circumstances as the court may consider essential contact with the child; or care of the child.
When the Court considers the above application, they take into consideration the following into account:
(a) the best interests of the child,
(b) the bond between the applicant and the child, and any other pertinent person and the child,
(c) the grade of commitment that the applicant has revealed to the child,
(d) the degree to which the applicant has subsidized towards expenditures in connection with the natal and upkeep of the child,
(e) and any other fact that should, in the view of the court, is justified.
If during the application proceedings attentions is drawn to the court that the adoption of the child has been made, the court may demand a family advocate, social worker or psychologist to provide the court with a account and commendations as to what is in the best interests of the child.
1.6. Section 24: Assignment of guardianship by order of court
Any person having an interest in the care, welfare and growth of a child may well apply to the High Court for an order yielding guardianship of the child.
When the Court considers the above application, they take into consideration the following into account:
(a) the best interests of the child,
(b) the relationship between the applicant and the child, and any other relevant person and the child;
(c) and any other fact that should, in the opinion of the court, be taken into account.
In the occasion of a person applying for guardianship of a child that now has a custodian; the applicant must succumb motives as to why the child’s current custodian is not apt to have custody in respect of the child.
1.7. Section 28: Termination, extension, suspension or restriction of parental responsibilities and rights
A co-holder of parental duties and rights in respect of the child and any other person partaking a adequate interest in the care, guard, welfare or progress of the child may apply to the Court for an decree:
(a) appending for a certain period,
(b) or dismissing, in the least or entirely of the parental duties and rights which a specific person has in respect of a child
(c) or encompassing
(d) or restricting the exercise by that person of any or all of the parental duties and rights that person has in respect of a child.
When the Court considers the above application, they take into consideration the following into account:
i. the best interests of the child,
ii. the relationship between the child and the person whose parental responsibilities and rights are being challenged,
iii. the degree of commitment that the person has shown towards the child and
iv. any other fact that should, in the opinion of the court, be taken into account.
1.8. Section 30: Co-holders of parental responsibilities and rights
When more than one person holds the equivalent parental duties and rights in respect of a child, each of the co-holders may act without the consensus of the additional co-holder when enforcing those duties and rights, excluding where the Children’s Act, any supplementary law or a directive of court affords otherwise.
A co-holder of parental duties and rights may not renunciate or handover those duties and rights to other person but can by agreement with that other person allow the other to exercise slightly or all of those duties and rights on his or her behalf.
1.9. Section 35: Refusal of access or refusal to exercise parental responsibilities and rights

A co-parent or guardian having care or custody of a child is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year if that person contravenes:
(a) Contravenes a decree of any court or in terms of a parental arrangement,
a) by denying another person who has access to that child or who holds parental duties and rights in respect of that child (in terms of that order or agreement) to exercise such access or responsibilities and rights or
b) who prevents that person from exercising such access or such responsibilities and rights.
(b) Informing, in writing, any change in residential address to such other person who holds parental duties and rights in respect of a child.

2. WHAT IS A PARENTAL PLAN

The Act provides a method of an agreement between the parents called a parenting plan. “Co-parenting is not asking permission. It's about discussing your child's needs and wants and deciding what's best” (quote by Anonymous). Parental Plan is a written agreement drafted by both parents with the help of a neutral third party which is to be used to support parents on in what manner they are to exercise their parental duties and rights after separation or divorce.
It must conform with the main intention of ensuring that the best interests of the child are placed first.

Parental Plan must be in writing and signed by the parties. The level of additional formalities depends on whether the plan is "mandatory" or "non-mandatory" of which will be discussed further in this article.

3. WHAT IS THE MAIN PURPOSE OF THE PARENTAL PLAN

Parenting plans ought to minimise loss and maximise relationships for children, and both parents should realise that they are more important to their children than alternative care providers. “At the end of the day, the overwhelming key to child’s success is the positive involvement of the parents” (quote by Jane D Hull). Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible.


4. VARIATIONS OF PARENTAL PLANS
In terms of Section 33 of the Act, there are two situations in which a parenting plan comes into play.
4.1. "Mandatory" Parental Plan - Section 33(2)
This type of parental plan is for parties who are experiencing difficulties in coming to an agreement. They must least have endeavoured to come to an agreement before approaching a court for assistance. An effort must have been made between the parties to try to come to a resolution.

In terms of Section 33(2) it states:

“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child”.

As stipulated, all holders of parental duties and rights in respect of a child do not need to enter a parenting plan as from the outset as stated, but if there are difficulties and one or more of the parties need to take
them to court, they ought to first attempt to settle on a parenting plan before imminent court proceedings. If the parties fail to settle on a parenting plan after following the conventions of the Act, the court may then be required to hear the application.

An application to register this form of parenting plan or to have it made an order of court must be made. There are two types of forms to consider, namely:
a) Form 93: This form will be used if the parental plan was completed with the assistance of a family advocate, social worker or psychologist or
b) Form 104: This form will be used and completed after mediation.

An application will then be made with one of the above forms together with a copy of the parental plan and a declaration by a family advocate, social worker or psychologist confirming that the plan was determined after conference with a family advocate, social worker or psychologist, or subsequent mediation by a social worker or other befittingly trained person.
4.2. "Non-Mandatory" Parenting Plan – Section 33 (1)
This type of parental plan is for co-holders of parental duties and rights who may agree at any time of a parental plan if they so choose. There is no stipulation as to how thoroughly co-holders of parental duties and rights ought to try to decide but the only requirement is that they must have at least made a "sensible effort".

In terms of Section 33 (1) states:

“The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child”.

This type of parental plan would apply when the parties want to have a organized parental plan in place but no one anticipates any action application to go to court on any problem.

Parenting plan "could" be recorded with a family advocate or made an order of court. It is not obligatory for parties to formalise a "non-mandatory parenting plan".
.
5. MEDIATION

It is always best to have a biased third party involved when attempting to come to an agreement in terms of a parental plan. This is essential as at this stage parents are emotional and not really thinking about the children but rather focused on the hurt and resentment they have towards each other.

Section 33 (5) instructs parties to pursue aid of a family advocate, social worker or a psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan.

Mediation is focused on attaining win-win. It is about sitting down and getting rid of all the angst and aggression.

During the drafting phase, the mediator will explore all aspects of family life and together with the parents, they will determine the care, contact, access and other relevant factors that come into play with regards to the best interest of the children.

According to s 33(4) of the Act:

“A parenting plan must comply with the best interests of the child standard as set out in section 7”.


6. WHAT PARENTAL PLAN WILL FOCUS ON

It’s simple, it will not focus on you and your feelings but rather on the best interests of the children.

The set format of parental plan involves many issues such as:

6.1. Where and with whom the child is to live;
In situations where one parent has done the majority of the child care, that parent should continue to be the primary caregiver until the child has time to adapt to spending more time with the secondary parent. In these situations, it may be feasible over time for the child to spend an equal amount of time with each parent. Having more than one home base is not always in the best interests of the child.
6.2. Maintenance of the child
6.3. Contact between the child and any other person
Parenting plan may state that the parents will reassure the child to phone the other parent each day, or that the parents approve not to speak destructively about each other in front of the child.
6.4. Schooling and religious upbringing of the child
6.5. Breaching parental plan
The parenting plan will have a dispute resolution section, employing a mediator and/or facilitator to attend to any disagreements that may rise amongst the parents and to intercede in situations where one parent breaks the plan.

7. FORMALITIES PARENTING PLANS – SECTION 33
In terms of Section 33, it details the formalities of a parenting plan that need to be adhered to before it can be registered with the family advocate or made an order of court. It states the following:

1) A parenting plan –
a) must be in writing and signed by the parties to the agreement; and b) subject to subsection (2), may be registered with a family advocate or made an order of court.
2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must –
a) be in the prescribed format and contain the prescribed particulars; and b) be accompanied by a copy of the plan.
3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must –
a) be in the prescribed format and contain the prescribed particulars; and b) be accompanied by –
i. a copy of the plan; and
ii. a statement by –
(aa) a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.
4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application –
a) by the co-holders of parental responsibilities and rights who are parties to the plan; b) by the child, acting with leave of the court; or c) in the child’s interest, by any other person acting with leave of the court.”
When the parties resolve to proceed to try to settle on a parenting plan, they need to have the parenting plan set.

8. COURTS

The Act encourages a parental plan as a means to avoid co-holders of parental duties and rights from future applications to court as a first option when they experience problems in exercising those duties and rights.
8.1. Avoiding legal battles

It is not to say that the courts do not want to hear issues regarding parental rights and responsibilities, but rather to ensure that the coparents have made a "reasonable effort" to reach agreement.

To avoid parents from running to court for every little problem, the Court has uttered its dissatisfaction with co-holders of duties and rights who do not follow an appeasing approach to come to a mutual agreement. Courts usually enforce adverse cost orders to encourage co-parents to make a reasonable effort and to make use of mediations to draft a parental plan as a prerequisite before being allowed to approach the court.

8.2. Approval of parenting plans in court

After agreeing to a plan, parents can choose to lodge a signed plan with the Office of the Family Advocate or have it made into an order of the court.

Should parents agree on a proposed parenting plan, the court will usually approve it. If the parents do not agree, the court will choose on a parenting plan after a subsequent hearing or trial. The court looks at various factors when coming to a decision, but the most critical issue is that the plan serves the best interests of the child

Once a plan is made an order of court, breach thereof may result in a contempt of court.

In cases of conflict partings or domestic violence cases, a complex level of responsibility is compulsory and so lodging with the court is an complete requirement.








9. DO CHILDREN HAVE A SAY

Depending on the child’s age, maturity and stage of development, such child must be accessed during the development of a parenting plan and granted an opening to state his or her opinions, which must be rendered due deliberation.

The Act necessitates that children also be referred when such a plan is conscripted so that they have an chance to bounce their say on who they request to live with, how much time they wish to devote with each parent and wherever they request to occupy distinct junctures, as well as any additional ranges in which they feel they ought to have a say.

The minute the plan is finalised, it is contracted by both parents. Parenting plans need to be frequently revised, as children’s evolving wants modify over time.


10. CAN YOU AMEND OR TERMINATE PLAN ON APPLICATION

Parental plan may be amended or terminated. If the plan was recorded at the family advocate, they must apply directly to the Office of the Family Advocate.

10.1. Who can amend?
Only three classes of persons may approach the court for an amendment or termination, namely:

(a) the co-holders of parental responsibilities and rights; (b) the child; or (c) a person acting in the child’s interests.
10.2. Procedure to amend
The side by side of procedures mandatory to amend or terminate a parenting plan is not subject to its status of "mandatory" or "non-mandatory", but rather on whether it was recorded with a family advocate or made a decree of court.

a) Parenting plan registered with a family advocate
A parenting plan registered with a family advocate may be amended or terminated by a family advocate on application by the parties to the plan.

Even though section 33(4) of the Children's Act 2005 mentions "the family advocate", it is unlikely that this wording was proposed to limit this capability solitary to the family advocate who recorded the parenting plan.

b) Parenting plan made an order of court
A parenting plan that was made an order of court may only be amended or terminated by:
i. a court on submission by the parties to the plan,
ii. the child (with leave of the court), or
iii. by any other person acting in the child's interests (with leave of the court).

Even though the position in section 34(5) of the Act to an request by "the parties" give the impression to suggest that an request by one party in the face of disagreement by another is impermissible, this clarification was rejected by Goosen J as the learned judge noted, " [s]uch an interpretation would be in direct conflict with section 8 of the Divorce Act, in terms of which a court having made a determination in respect of custody and care of a minor child, is entitled to vary or amend such order in the best interests of such child"6 and would yield an "absurd result".


11. WHAT HAPPENS WHEN YOU VIOLATE PARENTAL PLAN?

When a parent encroaches upon a court-ordered or approved upon parenting plan, they run the danger of being apprehended in contempt of court. Not only that, but they could face guardianship and visitation-related penalties if the court deliberates it to be a grave and reliable adequate problem.

12. ARE PARENTAL PLANS ENFORCEABLE?

As soon as the court makes a parenting plan a decree, both parents has a legal duty obey to it.
If single parent does not permit the other to see the child once he has the right to do so, he may be found in contempt of court. If a parent is found in contempt, the court could direct jail time, fines or another type of punishment as mentioned in this article above.


13. CONCLUSION

It is important to note that “there is no such thing as a perfect parent, so just be a real one” (quote by Sue Atkins). Despite the emotions, anger, hurt and resentment you might have with the other parent of your child, remember that all should be left behind, and focus should be made for the best interests of your child.

“It’s not only children who grow. Parents do too. As much as we watch to see what our children do with their lives, they are watching us to see what we do with ours. I can’t tell my children to reach for the sun. All I can do is reach for it, myself” (quote by Joyce Maynard). A parental plan is the beginning of a new chapter where your relationship with your ex-partner only involves the best interests of your children. If you put your love for your child above your feelings against your ex, you lead an example for your children to lead a harmonious life ahead. (NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney OR clerk of the court)

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