Speaker 1: Walking this talk together every hour every day.
Speaker 2: This is seven o two.
Speaker 3: Let's walk the talk.
Speaker 2: All right.
Speaker 4: I'm excited for us to have our his Conversation of
Speaker 4: the night. This is our Legal Matters feature, and it's
Speaker 4: a really important conversation to have around parenting but also
Speaker 4: the legally binding parts of co parenting, because oftentimes you'll
Speaker 4: find that many people out of rage, out of their hurt,
Speaker 4: you know, to be honest and not deviating for what's
Speaker 4: been agreed upon. And you hear words like he's a
Speaker 4: crappy person, and so you know, I don't want anything
Speaker 4: to do with him, but unfortunately that's not how the
Speaker 4: law works. And so we're going to be speaking about
Speaker 4: a parenting plan. Once you have decided to go your
Speaker 4: separate ways with this partner that you had once planned
Speaker 4: forever with. Now you've got your children and you must
Speaker 4: stick to a parenting plan. Is that legally binding and
Speaker 4: how does it work? Joining me for that conversation is
Speaker 4: a Claire Thompson, an attorney in private practice at WITS Inc.
Speaker 4: And she's a specialist family law practitioner.
Speaker 5: Player Grievening, what's so so lovely to be with you
Speaker 5: this evening.
Speaker 4: It's so lovely to hear from you at too, on
Speaker 4: this called Tuesday. I'm really excited to have our conversation
Speaker 4: today because there's so much about it that I actually
Speaker 4: I'm realizing I didn't know around a parenting plan. I mean,
Speaker 4: is this something that we see quite you know often?
Speaker 4: Is it a common thing among couples that have gone
Speaker 4: their separate ways but have kids.
Speaker 5: Absolutely, I would even go so far as to say
Speaker 5: that in one or another form, a parenting plan is
Speaker 5: almost given when there are minor children involved, and parties
Speaker 5: are no longer in a relationship with one another, be
Speaker 5: it that they were married before, or be it that
Speaker 5: they were in a long term relationship or a life
Speaker 5: partnership with one another, or even if they didn't have
Speaker 5: a relationship with one another before their children were born
Speaker 5: or their child was born. A parenting plan caters for
Speaker 5: all of the eventualities where people are no longer, where
Speaker 5: people need needed guidance and need a structure and a
Speaker 5: framework with regards to co parenting with one another.
Speaker 2: Claire, is it a given?
Speaker 4: So when you go to courts and you decide, you know,
Speaker 4: we're going our separate ways, and now we're figuring out
Speaker 4: what we're going to do with the kids and maybe
Speaker 4: this joint custody. Do you automatically then get told to
Speaker 4: have a parenting plan or is this something that each parent,
Speaker 4: depending on what they know and how much they know,
Speaker 4: then decide to have.
Speaker 5: Well, I think it depends largely on how able the
Speaker 5: parents are able to co parent effectively with one another together.
Speaker 5: So typically in a divorce proceeding, we will see that
Speaker 5: there is either a settlement agreement drafted which incorporates the
Speaker 5: same types of clauses that you see in a parenting plan,
Speaker 5: or a totally separate parenting plan is drafted, and in
Speaker 5: the context of divorce, that parenting plan or the clauses
Speaker 5: that you see in a settlement agreement that are typical
Speaker 5: of a parenting plan are then made in order of court.
Speaker 5: But that being said, if a couple hasn't been married,
Speaker 5: it's not necessarily a given that a parenting plan will
Speaker 5: follow the end of the relationship, because it might be
Speaker 5: that the relationship ends, but the parties are quite able
Speaker 5: to communicate effectively with one another, they're able to put
Speaker 5: a plan together with one another bok out what their
Speaker 5: maintenance obligations will be. Various things and we can talk
Speaker 5: about what goes into a parenting plan if you would
Speaker 5: like to. But if it is that a former couple,
Speaker 5: if I can say, are able to navigate the co
Speaker 5: parenting environment independently of having any expert involved, it's not
Speaker 5: necessary that a parenting plan is drafted, but it can
Speaker 5: be useful for parties even if things are going really well.
Speaker 5: It can be really useful to put what is going
Speaker 5: well in an agreement so that if anything isn't or
Speaker 5: stops working, and if there's any sort of discord that
Speaker 5: arises between them, that they have a document to refer
Speaker 5: back to, Because I think from a legal perspective, very
Speaker 5: often we think about and though the things are going well,
Speaker 5: now do we have a framework in a guideline for
Speaker 5: if something is to go wrong? And very often these
Speaker 5: documents are best negotiated when things are going well.
Speaker 4: And this is why I'm asking, I mean, how do
Speaker 4: you know you need one? Because I'm sure that it's.
Speaker 5: Such a good christ Yes, I'm such a good Christian.
Speaker 4: I'm sure there's people that are that feel like they're
Speaker 4: doing just fine. How do you know maybe we should
Speaker 4: get a parenting plan?
Speaker 3: Yet?
Speaker 5: You know, I think I think if things are going
Speaker 5: just fine, and I think if children are older, so
Speaker 5: a sixteen year old maybe, And I say that bearing
Speaker 5: in mind that the age of majority is eighteen, so
Speaker 5: if it is we have much older children and things
Speaker 5: have been going well for a really long time. I'm
Speaker 5: not sure if it's entirely necessary. It might be, it
Speaker 5: might be a good thing to have, but I don't
Speaker 5: know if it's necessary. If a couple or for former couple,
Speaker 5: let me say that are doing well, they've been doing
Speaker 5: well for a very long time in the absence of
Speaker 5: a parenting plan. I don't think you know, after listening
Speaker 5: to this conversation that it's necessary to, you know, rash
Speaker 5: out brief and attorney, go to mediation, get somebody to
Speaker 5: help you draft a parenting plan. I don't know if
Speaker 5: that's necessary, but I would say for parents of little's
Speaker 5: even if things are going well, consider scheduling a session
Speaker 5: with an attorney, with a mediator, with somebody who is
Speaker 5: able to talk you through a framework, perhaps together. If
Speaker 5: things are going well, I would suggest that it's a
Speaker 5: good place to go. The family advocate, which is a
Speaker 5: free service that is offered as part of the judiciary,
Speaker 5: is able to assist people with drafting a parenting plan.
Speaker 5: And the reason why I say that parents of at
Speaker 5: least might benefit from this is because they have a
Speaker 5: long time ahead of them and things change, Relationships change,
Speaker 5: new partners enter the picture, money comes, money goes, People
Speaker 5: might want to move to a different country. And I
Speaker 5: think these are the sort of things that we workshop
Speaker 5: often when we talk about the terms of a parenting plan,
Speaker 5: that we negotiate, and even if things are going well,
Speaker 5: as I've said, because things are going well, it might
Speaker 5: create the ideal environment for people to come together and
Speaker 5: talk about what might be points of difficulty if things
Speaker 5: were to go wrong. And if I'm to reference some
Speaker 5: of the other conversations that have been had on this
Speaker 5: show before, it's like drafting an anti nuptial contract before
Speaker 5: you get married. Don't draft an anti nuptial contract with
Speaker 5: the intention of getting divorced. You draft your anti nuptial
Speaker 5: contract to make sure that your financial affairs are in order. Similarly,
Speaker 5: with regards to a parenting plan, you draft a parenting
Speaker 5: plan not because you think that things are going to
Speaker 5: go badly, but to create a framework if it is
Speaker 5: that there is a if there is tension, that arises
Speaker 5: where there is a structure that needs to be referred
Speaker 5: back to.
Speaker 4: Okay, so we're saying we draft as parenting plan before
Speaker 4: things get messy and before they get idy.
Speaker 5: I think it's a good idea. I mean, it's not
Speaker 5: the only time that parenting plans are drafted. I would
Speaker 5: say more often than not, parenting plans are drafted when
Speaker 5: things are not going well. But it makes for a
Speaker 5: more difficulty environment because people are often not in a
Speaker 5: frame of mind where they are able to make decisions,
Speaker 5: which are where there is give and take or where
Speaker 5: there is compromise, because when there is conflict, very often
Speaker 5: people feel like they have to stick to their position.
Speaker 5: Whereas I think when things are going well and it's flowing,
Speaker 5: sometimes it's easier to navigate difficult spaces together when things
Speaker 5: are going When things are going well. If things aren't
Speaker 5: going well, so for those listeners who are listening to this, thinking, gosh,
Speaker 5: I missed the boat. Things aren't going well. I never
Speaker 5: drafted a parenting plan. What do I do now? This
Speaker 5: is the time. So if things aren't going well, it's
Speaker 5: the ideal opportunity to draft a parenting plan and to
Speaker 5: engage either a professional be at an attorney or a
Speaker 5: psychologist who is a specialist in this field, or social
Speaker 5: worker that's a specialist in this field. We aternatively to
Speaker 5: refer to mediation or to go to the family advocates officers.
Speaker 4: Well, speaking to Claire Thompson, she's an advocate and private practice.
Speaker 4: She's also a specialist in family law. Talking us through
Speaker 4: something called a parenting plan, often used by people that
Speaker 4: were a couple and have kids and now they kind.
Speaker 2: Of need to put the rules of.
Speaker 4: What happens and who does what and how we go
Speaker 4: about this on paper in the form of a parenting plan.
Speaker 4: I'm going to open the lines zero double one double
Speaker 4: a three oh seven oh two and zero two one double.
Speaker 2: Four six five six seven.
Speaker 4: If you are in a situation where you believe you
Speaker 4: need a parenting plan and you have questions for a Claire,
Speaker 4: get in touch with us, call us on that number
Speaker 4: or send us a voice note on zero seven two
Speaker 4: seven oh two one seven oh two. And if you're
Speaker 4: wondering what needs to go into a parenting plan, also
Speaker 4: get in touch with us on those numbers. Claire, So,
Speaker 4: I mean, I'm really interesting, I'm interested in what this
Speaker 4: plan actually looks like, you know, is it a?
Speaker 2: Is it a?
Speaker 5: Is it?
Speaker 4: Two columns with coromotol and you know, and a partner
Speaker 4: or former partner and you do this, and you do
Speaker 4: this and you have the kids on you know, Monday
Speaker 4: to Friday, and you know what goes into it? And
Speaker 4: how detailed did these plans get?
Speaker 5: They can get really really detailed. Maybe I'll start at
Speaker 5: the end first. They can be really really detailed, and
Speaker 5: it must cater for that family's unique needs. And I
Speaker 5: think when we think about our own families, because we
Speaker 5: very often have the most insight into our own families,
Speaker 5: our families are complicated. You know, we all have our
Speaker 5: own likes and dislikes and foibles. And if some people
Speaker 5: like to travel, for example, some people prefer to stay
Speaker 5: at home. With regards to parenting, some people discipline in
Speaker 5: a particular way, other people discipline in another way. Parenting
Speaker 5: plans can encompass everything from the basics, which I'll call care, contact, guardianship,
Speaker 5: and maintenance, which are the primary structures with regard to
Speaker 5: how it is that parties interact with one another who
Speaker 5: both have children together, but it can also go into
Speaker 5: far more detail, things like religion, discipline, diet TV watching
Speaker 5: for example, use of social need.
Speaker 2: Diet.
Speaker 5: I mean, if you think about vegetarianism, for example, even
Speaker 5: religious restrictions with regards to what food can be eaten
Speaker 5: and not eaten. If a couple are of different religions,
Speaker 5: or if they have different dietary structures, if I could
Speaker 5: say that one's a vegetarian, one eats meat. How is
Speaker 5: it that this child is parented between two households when
Speaker 5: only meat only vegetables are eaten in one house, but
Speaker 5: meat is eaten in the other. And if the parent
Speaker 5: wants the child to be brought up as vegetarian, for example,
Speaker 5: what happens when the child goes to the mettea parent's house.
Speaker 5: So it might feel like a very very small example
Speaker 5: when I'm talking about it now, but the reality is
Speaker 5: that these things are really really important in people's lives,
Speaker 5: and if they're not giving the appropriate context, if they're
Speaker 5: not given the appropriate gravitus, it can be an area
Speaker 5: where conflict arises. And what we want to avoid is
Speaker 5: conflict one because it often spills out into the child's life,
Speaker 5: which is something we want to avoid. But we also
Speaker 5: want to set these people up for success. We want
Speaker 5: to make sure that as they progress through their co
Speaker 5: parenting journey with one another, but they're able to do
Speaker 5: so well, and they're able to do so effectively. And
Speaker 5: I think whilst it is that you could possibly draft
Speaker 5: a parenting plan yourself, and you could refer to the
Speaker 5: family advocate for comment, for example. So you're often beneficial
Speaker 5: to get an expert involved in some form or another
Speaker 5: to give you some guidelines as to what it is
Speaker 5: that we should be thinking about, because for some people listening,
Speaker 5: you might think diet is not an issue for me,
Speaker 5: but something else might be social media. I think you know,
Speaker 5: I was listening to your intro earlier when you were
Speaker 5: talking about suicide and the risk for teens with regards
Speaker 5: to social media, such a big topic at the moment
Speaker 5: for so many people. It requires parents to be on
Speaker 5: the same page with regards to how it is that
Speaker 5: they are going to annow a child between a teen
Speaker 5: to engage with social media, what the boundaries are, what
Speaker 5: the parameters are, because children are also aware of what's
Speaker 5: allowed in one parent's house may not be allowed in
Speaker 5: another parent's house, and they may play the one off
Speaker 5: against the other if the parents are not aligned with
Speaker 5: one another and so for parents to come into combined
Speaker 5: space or collective space with a facilitator to talk about
Speaker 5: these things so that they were both able to understand
Speaker 5: each other's perspectives, the potential risks that are involved, and
Speaker 5: then to make decisions on that basis. It can be
Speaker 5: a really really positive experience.
Speaker 4: And what happens if you don't agree, you know, I'm
Speaker 4: sure their parents say no, I want my child to
Speaker 4: be raised Buddhist and the other parents says yeah, but
Speaker 4: that's not what I want.
Speaker 2: What happens then.
Speaker 5: It's exactly how things often go. And very often people
Speaker 5: before they have children not able to tolerate one another's differences
Speaker 5: very well. Single people, married people are able to tolerate
Speaker 5: these things and give one another the space to be
Speaker 5: autonomous even though they're in a couple. If I can
Speaker 5: express it like that, coming into that same picture when
Speaker 5: a child is involved changes the dynamics dramatically. Sometimes sometimes
Speaker 5: people are able to continue to navigate that space quite successfully.
Speaker 5: For others, it becomes fraught with tension, and under those
Speaker 5: circumstances it's absolutely necessary for the matter to be referred
Speaker 5: to somebody or something to navigate that with them. My
Speaker 5: first recommendation is always mediation, and it's just generally becoming
Speaker 5: more and more entrenched in our legal system that mediation
Speaker 5: should be the first port of call before any sort
Speaker 5: of litigious process is undertaken. That being said, it is
Speaker 5: not always appropriate for all people, and sometimes a matter
Speaker 5: needs to be referred to the Children's Court for example,
Speaker 5: or the High Court in order for the court to
Speaker 5: make a determination. But to your question about religion, for example,
Speaker 5: it's very very difficult for a court when looking at
Speaker 5: two parents, one of whom might be Buddhist and one might,
Speaker 5: for example, be atheist, to say, well, one is better
Speaker 5: than the other. And so the role of the professionals
Speaker 5: that are involved in helping parents navigate through that space
Speaker 5: is to try and find an environment that is supportive
Speaker 5: for the child and that doesn't cast confusion for the child,
Speaker 5: albeit that the parents have different belief systems or structures
Speaker 5: in their homes that a child is required to live
Speaker 5: with when they are with a respected parent.
Speaker 4: You know, just speaking about how how detailed parenting plan
Speaker 4: can be, I mean, you know, sometimes when parents, even
Speaker 4: if it's the parents that are you know, that have
Speaker 4: decided that they're going to be proactive and do it
Speaker 4: before there's squabbles and fights. I'm reminded of a scenario.
Speaker 2: That was dealt with in one of them.
Speaker 4: I believe it was show where one of the parents
Speaker 4: or you know.
Speaker 2: The lady lives with the child.
Speaker 4: She has two children by two different men, and the
Speaker 4: one father of a child wanted to take the child
Speaker 4: on holiday, and she said, well, you can't take the
Speaker 4: one child in holiday because then you know what happens
Speaker 4: with what happens with the other child, and you know,
Speaker 4: it's it's just it's going to make the situation so
Speaker 4: bad here in my in my home. So if you don't,
Speaker 4: if you can't take the both, you can't take the one,
Speaker 4: right And I'm wondering is this even something that can
Speaker 4: be preempted in a parenting plan, things like what happens
Speaker 4: if I want to take one child? You know, like,
Speaker 4: can we even plan for situations like that?
Speaker 5: And I don't think they can plan for all eventualities
Speaker 5: in the absence of the proverbial crystal ball, it's just
Speaker 5: impossible to foresee what the future holds. And I think
Speaker 5: if we are, we only need to look back five
Speaker 5: years to remind ourselves of that. Nobody foresaw a COVID pandemic.
Speaker 5: Nobody foresaw what what that would bring up for people
Speaker 5: who were co parenting with one another. And just to
Speaker 5: give you a short example of what that looked like,
Speaker 5: children were with one parent and lockdown happened, and the
Speaker 5: child should have been moved to the other parent's house,
Speaker 5: and the question was whose house should the child stay.
Speaker 5: Nobody could have anticipated that. Nobody could have anticipated how
Speaker 5: diverse people's views were on the vaccinations, for example, on
Speaker 5: wearing a mask, on going to school, on being allowed
Speaker 5: to go to the grocery store with their parents. Nobody
Speaker 5: could have foreseen the challenges. But we arose, or that
Speaker 5: arose at that time. But I think, and I've made
Speaker 5: reference to having a shared language with one another often before,
Speaker 5: I think it's important to train. If I can say,
Speaker 5: if we can liken having tough conversations to going to gym.
Speaker 5: The first time you lift the weight, it's difficult, but
Speaker 5: it gets easier and easier and easier over time because
Speaker 5: the muscle develops. And similarly with regards to difficult cons stations,
Speaker 5: people don't automatically have a shared language, a shared discourse,
Speaker 5: a shared strategy with one another. The first time that
Speaker 5: conflict arises, if they haven't had an opportunity to train. Now,
Speaker 5: you don't run a twenty five k marathon if you've
Speaker 5: never taken a dog around the block. So you need
Speaker 5: to start somewhere in order to get better, so that
Speaker 5: if the conflict arises, there is already some sort of
Speaker 5: foundation to work from.
Speaker 2: And so this is.
Speaker 5: Why I would encourage people who have young children who
Speaker 5: are co parenting with one another, who think, Okay, things
Speaker 5: are going really well, do I really need to do this?
Speaker 5: I would encourage you to engage in the process anyway,
Speaker 5: because working through some of the issues allows for that
Speaker 5: shared language to develop, allows that shared strategy to develop,
Speaker 5: allows us to contemplate some of the things that we
Speaker 5: imagine come up that might feel difficult for us. That
Speaker 5: doesn't matter that it doesn't mean rather that we've got
Speaker 5: it all covered and that we've got a parenting plan
Speaker 5: that's locked down for the rest of that child's minority,
Speaker 5: not at all, but at least we know how it
Speaker 5: is that we can navigate through things that are a
Speaker 5: little bit difficult because we've started practicing that.
Speaker 4: We're taking your calls on zero, double one, double A
Speaker 4: three seven, oh two or on two to one double
Speaker 4: four six five six seven. Do you have a parenting
Speaker 4: plan with your co parent? Is it working for you?
Speaker 4: And if not, why do you think it's not working?
Speaker 4: And are you considering getting a parenting plan? I know
Speaker 4: many people and when it comes to co parenting, are
Speaker 4: learning as they go.
Speaker 2: No one plans to be just. I suppose that there are.
Speaker 4: People maybe who plan to be co parents, but ideally
Speaker 4: I think many people you know would like to raise
Speaker 4: their children together.
Speaker 2: But life happens. So let us know.
Speaker 4: Do you have one? Are you planning on getting one?
Speaker 4: Are you struggling with your partner and considering getting a
Speaker 4: parenting plan? Zeritible on W three oh seven O two
Speaker 4: two one five four four six five six seven. I
Speaker 4: want to come to this now, Claire. So I mean,
Speaker 4: we've got the plan together, now, we've agreed, and we've
Speaker 4: gone into as much detail as we possibly can. What
Speaker 4: then happens when one parent decides to deviate and sort
Speaker 4: of not keep their end of the bargain.
Speaker 5: I think the first thing, maybe just to take one
Speaker 5: step back, is what do we do after the parenting
Speaker 5: plan is drafted? And that choice is another one that
Speaker 5: faces parties there are three choices. You can keep it
Speaker 5: in a file between you, You can keep it in
Speaker 5: a safe place, can keep a signed version, and you
Speaker 5: can refer to it as your as you're going, as
Speaker 5: your framework, or you can have it registered with the
Speaker 5: Office of the Family Advocate. The family advocate will consider
Speaker 5: it and consider whether the clauses in the terms that
Speaker 5: are contained in that agreement are in the best interests
Speaker 5: of the town. If there are clauses that the family
Speaker 5: Advocate does not believe are appropriate, they will give feedback
Speaker 5: on that the family. The Office of the Family Advocate
Speaker 5: will register that parenting plan, and then it's a registered
Speaker 5: parenting plan with the Office of the Family Advocate. One
Speaker 5: reason why parties might want to take it a step
Speaker 5: further and have it made an order of court is
Speaker 5: that having something made an order of court makes it enforceable.
Speaker 5: So it elevates it from an agreement that is inter
Speaker 5: parties or between two people to something that is a
Speaker 5: lot more weight he because it brings with it consequences
Speaker 5: if the provisions that are contained in that agreement are
Speaker 5: not adhered to, And to your question, what happens if
Speaker 5: somebody deviates? If it is that there is a parenting
Speaker 5: plan that has been made in order of court. There
Speaker 5: is then a remedy for the aggrieved party to go
Speaker 5: to court and say, the person with whom I am
Speaker 5: co parenting has deviated from the parenting plan and I
Speaker 5: want them to be held responsible. What that responsibility looks
Speaker 5: like depends on what it is that has gone wrong.
Speaker 5: In some instances, it might require the parties to go
Speaker 5: to court and a court will then make a decision.
Speaker 5: In other instances, it might be the consequences of something
Speaker 5: as serious as a criminal charge, and so deviations are
Speaker 5: diet for exams are unlikely to render a criminal charge
Speaker 5: unless there are very very specific reasons why.
Speaker 2: That would be the case.
Speaker 5: But things like not paying maintenance, for example, if there's
Speaker 5: an agreement in that parenting plan about how much maintenance
Speaker 5: is paid and by who, and the maintenance pay are defaults.
Speaker 5: The consequences of that are contempt of court and so
Speaker 5: seriously that a court can order imprisonment or a fine
Speaker 5: if it is that the person doesn't pay maintenance. So
Speaker 5: there are different potential outcomes depending on what parties do
Speaker 5: with the parenting plan after it's been drafted.
Speaker 2: All right, let's take a caller. Let's take Peter, whosin Joeberg.
Speaker 4: He says he's about to get married and he also
Speaker 4: wants to adopt his wife's son. Peter, thank you so
Speaker 4: much for joining us. Peter, go ahead. What's your question?
Speaker 4: What's the situation?
Speaker 3: Yeah, the situation is the father of the child of
Speaker 3: my girlfriend's child is not involved apparently in his life
Speaker 3: for the past five years. So as I'm getting married,
Speaker 3: I need to find out if if I adopt the child,
Speaker 3: would there be a problem if for me to officially
Speaker 3: adopt the child without the father coming back and interfering,
Speaker 3: if there is no parent or agreement between the father
Speaker 3: and the mother of the child.
Speaker 2: So the father's not involved at all at all.
Speaker 3: They went separate ways, and the child has got the
Speaker 3: mother's say nay, And the child is being staying with
Speaker 3: the mother and being supported by the mother without any
Speaker 3: involvement of the father although there and once in a
Speaker 3: while comes to visit the child or takes the child
Speaker 3: to commit the other cousins, but in terms of financial
Speaker 3: or difficulture about the mother is not there.
Speaker 2: And you fear that.
Speaker 4: One day he'll wake up, as maybe do, and say,
Speaker 4: you know, this is my child he is.
Speaker 3: And the problem is, if I keep with ms, he
Speaker 3: hears that we're getting married, why does he have to
Speaker 3: come out and say no, he can get married to
Speaker 3: the woman, but I want my child.
Speaker 4: Sure, Okay, all right, let's let's let's hear I mean, Claire,
Speaker 4: you hear the situation.
Speaker 2: I think it's a very late layered situation.
Speaker 6: Absolutely, if I can just ask one question of Peter,
Speaker 6: if he's still on the line, is the biological father's
Speaker 6: sorry I fata is the biological father's name.
Speaker 5: On the birth certificate of the child?
Speaker 3: He is on the unabridged pacertificate on the unabridge.
Speaker 5: Okay. So the legal position is that I can't ask
Speaker 5: one more question. Were the parties married when the child
Speaker 5: was born?
Speaker 3: When the child was out of wedlow.
Speaker 5: Born outside of the marriage. So the first thing.
Speaker 4: Had the problem, Cary, But yeah, he's just saying they
Speaker 4: never got married.
Speaker 5: Okay.
Speaker 7: So the.
Speaker 5: First hurdle to adoption is going to be that the
Speaker 5: biological father of the child is likely to be deemed
Speaker 5: in law the co holder of parental rights and responsibilities.
Speaker 5: He would need to satisfy the criteria of Section twenty
Speaker 5: one of the Children's Act, which is that he was
Speaker 5: living in a permanent life partnersh with the mother of
Speaker 5: the child at the time of the child's birth, or
Speaker 5: that he has contributed to the child's upbringing, raising the child,
Speaker 5: the child's maintenance, and has consented to be identified as
Speaker 5: the child's father, and that consent to be identified is
Speaker 5: encapitulated in the recordal of the biological father on the
Speaker 5: child's birth certificate. Now, in order for a child to
Speaker 5: be adopted, either the child needs to be deemed to
Speaker 5: be adoptable in terms of the Children's Act, or the
Speaker 5: guardians of the child need to consent to that child's adoption. Now,
Speaker 5: if it is that we are to assume that the
Speaker 5: biological father is the holder of guardianship of this child,
Speaker 5: he would need to consent to the adoption of the child,
Speaker 5: which means that he would have to go to Children's
Speaker 5: Court and go before a magistrate and confirm that it
Speaker 5: was in fact his intention to have the child adopted.
Speaker 5: Because the consequence of adoption is that the child's birth
Speaker 5: certificate is amended to reflect the name of a different
Speaker 5: parent to that of the parent that is the biological
Speaker 5: parent of the child in this case, so it's very
Speaker 5: important to consider that in the absence of this father
Speaker 5: agreeing the child would need an application would need to
Speaker 5: be brought to to have this child declared adoptable, and
Speaker 5: the biological father's presence, I think think may or may
Speaker 5: not be a significant factor as to what the outcome
Speaker 5: of a matter like this would be.
Speaker 4: Okay, maybe let's let's let's go step by step. So
Speaker 4: what does he have to do?
Speaker 2: First? Step one, what does he need to do?
Speaker 4: And then step two, so he knows exactly what he
Speaker 4: should started doing in terms of process.
Speaker 5: So to I imagine this would be quite a difficult
Speaker 5: point of departure. But to ask the biological father whether
Speaker 5: he would consent to the child's adoption, because adoption would
Speaker 5: have the effect of having that man's name removed from
Speaker 5: the birth certificate and it being substituted with another parent's name.
Speaker 5: And so to ask the question first and foremant whether
Speaker 5: the biological father would then consent to the adoption of
Speaker 5: the child. And I said that it's difficult because the
Speaker 5: fears that people very often have is to make that
Speaker 5: to make that contact would awaken the desire to for
Speaker 5: this for this person to come back into the child's life.
Speaker 5: The alternative. The alternative would be to approach the children's
Speaker 5: court and ask for the children's court to deem that
Speaker 5: child to be adoptable. But again, the hurdles to overcome
Speaker 5: for a parent would be very, very high, and it's
Speaker 5: certainly not a guaranteed process. I suppose, I suppose my
Speaker 5: question would be with regard to whether or not the
Speaker 5: biological father would be prepared to consent to that child
Speaker 5: being adopted.
Speaker 2: Peter, Yes, yes, you can go ahead.
Speaker 3: Yeah, you know, I just want to clarify there as
Speaker 3: the adoption in terms of you know, the African culture,
Speaker 3: when you get married to a woman with.
Speaker 7: A child, to either.
Speaker 3: Take care with the child and later on, especially where
Speaker 3: the child is a minor, you do want to be
Speaker 3: able to you know, there are certain technical things. If
Speaker 3: you want to take the child overseas who is in
Speaker 3: a different surname as hers, or you want to put
Speaker 3: the child in a certain investment who does not share
Speaker 3: a surname with you, it becomes technically challenging. So now
Speaker 3: it's easier if the child, if you get married to
Speaker 3: the child, the child changes the surname like the mother
Speaker 3: to your surname. Yeah, child is sharing the same name
Speaker 3: with the mother, you know, and.
Speaker 4: Just to clarify for for Claire, but if I get
Speaker 4: married to the child, you mean what they say the man, Yes,
Speaker 4: So I don't even know how to explain that from
Speaker 4: the African context, but basically it's the lobola that you
Speaker 4: would take out in addition to the love for the
Speaker 4: wife or for your bride, for your for the child
Speaker 4: as well, and then automatically, you know, the assumption is
Speaker 4: then the child becomes yours. But then there's this legal process, Peter,
Speaker 4: and I think there's no going there's no running away
Speaker 4: from having to somehow approach him, you know, and and
Speaker 4: and speak to him about that.
Speaker 2: And yah. Yeah, good luck, Peter, good luck with their process.
Speaker 3: Thank you, thanks for the advice.
Speaker 2: Yes, no, no worries.
Speaker 4: Let's let's take a call from anonymous as well, who's
Speaker 4: got a question on family advocacy. Anonymous, good evening, and
Speaker 4: welcome to the show.
Speaker 7: That's for the topic, folks. Now, quick, my partner somebody
Speaker 7: and according to the arrangement, obviously there is but the
Speaker 7: other party is not pulling in you know where visitations.
Speaker 7: They're very quick when it comes to them going to
Speaker 7: my partner. Now, this also okay.
Speaker 4: We'll just wait, and I said, so we're all on
Speaker 4: the same page. So this is your partner.
Speaker 2: You've got a partner, yeah.
Speaker 4: And there's a child. Uh huh, and you had a
Speaker 4: did you have a child together?
Speaker 7: No?
Speaker 4: No, okay, she has a child from previous relationship. And
Speaker 4: you're saying, now.
Speaker 7: Secret, he's not getting her part of the deal going
Speaker 7: Where the father of the child? Yeah, you know, I say,
Speaker 7: power also comes into play. He's somebody who seems to
Speaker 7: be connected. Now the child would be get away from
Speaker 7: my partner for weeks from end and when they do visit, listen,
Speaker 7: it's a two day visit and nothing more than that,
Speaker 7: you know, And you know it seems us very much powerless.
Speaker 7: You know, we're considering what I've just said, where there's
Speaker 7: also a power play. You know, there's somebody who you know,
Speaker 7: we tend to feel that on the law side, it
Speaker 7: would fall onto him.
Speaker 3: I don't know what he's doing.
Speaker 7: She's now let me just turn into the story. She
Speaker 7: is from one of our neighboring countries, one of our
Speaker 7: countries within South Africa. You know, I don't want to
Speaker 7: go into.
Speaker 2: There's only one country.
Speaker 7: Right, So that was used against her as well. We're
Speaker 7: even in the court she was deemed to be a foreigner.
Speaker 7: You've got an essay, I d she's a local and
Speaker 7: or these kind of things have been used against her
Speaker 7: to a point where, like I said, you know, at
Speaker 7: times we just feel destiny. Yeah, how long we don't?
Speaker 7: And now this is really much affixed the kid. You
Speaker 7: know where we were we I would just like to
Speaker 7: be given his wife on such I heard you mentioned
Speaker 7: in the family advocacy and before and there about to
Speaker 7: go to go out the whole thing.
Speaker 2: So so what would you like to see happened? And
Speaker 2: onus really quickly?
Speaker 7: The part you know its responsible or shape you know,
Speaker 7: as I said, when it comes to that printing plan,
Speaker 7: you know where it's limited towards my partner. Yeah, and
Speaker 7: you know I've made those with it. The fact is,
Speaker 7: you know, the power.
Speaker 4: Plays so so so so so they do have a
Speaker 4: plan in place. It's just like he's not he's not
Speaker 4: keeping as into the bargain. Is that what you're saying? Yeah, yeah, okay,
Speaker 4: And and you want to find out how to compel
Speaker 4: him to do so.
Speaker 7: Yeh, and how to work around it, you know, and
Speaker 7: before we get big options get better options on how
Speaker 7: to tackle the whole patient plan.
Speaker 1: Yeah, it sounds like it sounds like it's an entrench pattern,
Speaker 1: and it sounds like it's been going on for a while.
Speaker 1: And it sounds as well like some of the court
Speaker 1: processes have frustrated you, you and your partner to some
Speaker 1: extent as well. You've mentioned that, you know, with her
Speaker 1: being a foreigners, that there's been some sort of discrimination.
Speaker 1: I think one of the questions that I would have
Speaker 1: is do you have appearancing plan and has it been
Speaker 1: made in order of court?
Speaker 7: It?
Speaker 1: Does she have apparence in that?
Speaker 7: Yes, yes, you know werevisitations were bit and all, but
Speaker 7: it's not being the.
Speaker 1: And is that parenting plan an order of court? Yeah,
Speaker 1: in the children's courts when the.
Speaker 7: High Court it went to a High court, because I
Speaker 7: remember she spoke about you know, it went to the
Speaker 7: High Court.
Speaker 1: I what what needs to follow after a parenting plan
Speaker 1: is made an order of court? If there is non
Speaker 1: adherence to that parenting plan, then there needs to be
Speaker 1: some sort of contemp proceeding that follows from that point.
Speaker 1: So that is to go back to court to say
Speaker 1: to the court there is this order in place, but
Speaker 1: it is not being a dared to and to ask
Speaker 1: the court to to to either bring about consequences for
Speaker 1: the non adherence to that or for there to be
Speaker 1: another order that's made. If it is that there are
Speaker 1: concerns rates and I don't know whether that whether this
Speaker 1: is a feature of your particular scenario, but it is
Speaker 1: that the other side is, for example, to raise an
Speaker 1: issue to the reasons why parenting is not being done
Speaker 1: in the way that it was ordered in terms of
Speaker 1: a parenting churn. It might be that there is a
Speaker 1: need for an investigation to be conducted, either by social
Speaker 1: work or a psychologist, to an expert in their field,
Speaker 1: to determine whether or not the allegations that have been
Speaker 1: made by the one party against the other are.
Speaker 5: In fact correct or not.
Speaker 1: If it is that that is not the case and
Speaker 1: it's just willful, then we need to bring about contempt
Speaker 1: proceedings against the other parent and for there to be
Speaker 1: consequences that are bought.
Speaker 3: To be.
Speaker 2: Claire, thank you so much.
Speaker 4: I know that there as I as I as I thought,
Speaker 4: so this wasn't enough time to get through this, but
Speaker 4: very quickly, just let us know where people can find
Speaker 4: you if they need further assistance.
Speaker 1: People can give us a call on your double when
Speaker 1: zero went zero, zero four hundred, or they can pop
Speaker 1: us an email at family at Witsinc. Dot co dot CDA.
Speaker 4: That's Claire Thompson. She's a family law practitioner and she's
Speaker 4: an attorney in private practice at WITS Inc. Thank you
Speaker 4: so much for joining us a conversation there on parental plans,
Speaker 4: and I hope that this has ignited thoughts if you
Speaker 4: were not already thinking about it.