Children are the light and heart of the family, and they can lead to the most complicated disputes.
The avenues that can be taken to enforce, obtain or remove these rights are by approaching the Children's Court, or the High Court, depending on the circumstances and rights involved. Parenting plans for unmarried parents can also be drawn up, if there is a little contention.
In terms of South Africa law, both parents automatically have full rights and responsibilities in respect of a minor child. In respect of fathers, the law has certain presumptions, in that a man is deemed to be the father if he and the mother were living together, married or in a stable relationship at the time the child was conceived. If there is a dispute regarding this, the court can provide DNA tests.
An unmarried father automatically has the same rights as the mother, all be it that it may be more difficult to enforce, which is where parenting plans or parenthood agreements come into play.
PARENTING PLANS / PARENTHOOD AGREEMENTS
In terms of the Children's Act, there is a duty on the unmarried parents to first try and attend a process called mediation before they proceed to court. This process of mediation can be conducted by the Family Advocate,a social worker, a psychologist, or a suitably qualified person, such an accredited attorney, which our is.
The parties will then attempt to mediate and arrive at a parenting plan, which can be especially comprehensive, as it may include aspects such as religion, schooling, contact rights, maintenance and even the primary residence, amongst other.
This parenting plan can then be registered at the Family Advocate or Court to make it enforceable, and to give it teeth, so to say.
Not abiding by a parenting plan, or a divorce settlement in respect of a minor child, could have serious consequences - but it must be taken into consideration, that there are always exceptions.
When divorce proceedings are initiated, aspects revolving around a minor child can be contentious and emotional. The issues here can range from maintenance, to contact, to guardianship and to with whom and where the child must reside. Parties can settle a divorce, where all these aspects can be addressed, especially in unopposed and mediated divorces. However, where a divorce is opposed, and one of the opposed aspects revolve around a child, experts such as social workers, psychologists or the family advocate may become involved, depending on the certain aspect.
Parties who were divorced, either on an opposed or unopposed basis, are subject to either terms of a settlement agreement or divorce order. This is however not the end of the matter, as either party can approach the High Court to amend the order at a future date. Not abiding by the settlement agreement or order can lead to serious criminal repercussions, such as criminal charges of failure to pay maintenance, contempt of court, and even abduction. It is always advisable if there is a dispute, to approach the court for an amendment.
In some instances it is also possible to allow a member of the family to enter into a parenting plan with the parents to take care of the child. This can apply to situations where a parent or parents enter into an agreement with a family member to care for the child due to lacking abilities of the parents, such as lacking financial abilities.