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How do you ensure that your child?s best interests are upheld when you are going through a divorce?
In South Africa, the Constitution entrenches a child?s right to family or parental care, and also ensures that a child?s best interests are of paramount importance.?
In practice, the duty to ensure that the child?s best interests are central to the decision-making process, is often overshadowed by the divorcing parents? needs.?
Being heard
The Children?s Act provides that a child must be informed of any action or decision taken in a matter concerning them, depending on their age and level of maturity.?
In addition, the law provides that a child has the right to be involved in any important decisions, again depending on age and maturity.?
In spite of this, very few legal professionals consult with children when preparing parenting plans on behalf of their clients, and so do not have the opportunity to hear what the children?s needs and wishes are.
Relying on professionals
Whilst many legal practitoners may not have the necessary skills to engage appropriately with children, the risk of not meeting with the children may result in a plan that is parent-focussed and not necessarily in the best interests of the children.?
A parent may often be incapable of focussing on what is in the best interests of their child or children, in the face of the deluge of emotions that accompany the breakdown of a marriage.?
Taking this into account, the Children?s Act gives guidance to the professional on the content and formalities of parenting plans. It is essential that children, where age appropriate, have frequent and meaningful contact with both parents.
Working together
It is essential that all aspects of care and contact are dealt with in sufficient detail.?
For example:?
? Schools should be notified, in order that all information, invitations and documentation are sent to both parents;?
? The terms of residency and contact details should be clearly stated;?
? Parents should work towards dealing with one another civilly, should issues arise concerning their children, and the contentious matters of the divorce should not be discussed in front of the children, if possible.?
If parents are in conflict over differing parenting styles, then a list of guidelines should be drawn up. Parents should ensure that they do not in any way try to alienate the children from the other parent, and to be respectful of 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 also lay the groundwork for a peaceful and stable upbringing.?
For more information email Gillian Lowndes at gillian@lowndes.co.za.
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