Navigating co-parenting decision-making for major decisions
When a married couple with a child or children divorces, they may both hold parental responsibilities and rights for their child. In many circumstances, they may each act without the consent of the other. This often happens when the child’s primary residence is with one parent, who is then entitled to make decisions about their day-to-day care. It would be impossible – and not in anyone’s best interests – for the parents to consult over every decision, right down to what is a suitable bedtime and whether to compel the child to eat their broccoli! But what about important decisions? Issues like schooling, relocation, health care (for example, whether to vaccinate against COVID-19, a debate raging in the UK regarding 12-15-year-olds right now), and religion are deemed too important to not include both parents in the co-parenting decision-making process.
When should the child be consulted?
When a person holding parental responsibilities and rights for a child contemplates any decision, the child’s views and wishes should be considered. The child’s ability to have a view will depend on their age, maturity and stage of development. The child may not necessarily have their wishes granted. After all, children are not always good judges of what is best for them; that’s why parents have a statutory responsibility to look after them until they reach 18. But they are entitled to be consulted, and their feelings taken into consideration in the final decision, as far as practicable and possible.
Joint co-parenting decision-making
Joint decision-making by co-holders of rights and responsibilities is appropriate – and advised – in the following situations:
- Major decisions about schooling and tertiary education
- Major decisions about mental health care and medical care (except in the case of emergency)
- Major decisions about religious and spiritual upbringing
- Decisions affecting contact between the child and the parents (or guardians)
- Decisions that are likely to significantly change the child’s living conditions (including but not confined to place of residence), or have an adverse effect on the child’s well-being
A parenting plan is the legal instrument introduced by the Children’s Act 38 of 2005. It governs expectations and sets out rights and responsibilities. The parenting plan defines the roles and powers of each parent or carer. These may be equal (co- or shared parenting) or one parent may have a greater share of the care responsibility.
Who should have a parenting plan?
All separated parents should have a parenting plan, whether they were married or not, and whether the divorce was acrimonious or amicable. It will prevent conflict and potential heartache down the line. The parenting plan outlines which parent the child lives with, the amount of time the child will spend with each parent, how maintenance will be paid, how major decisions about the child will be made, and how the parents will work out any major disagreements. A parenting time schedule is the basis for the plan, to avoid conflicts over important dates and events, and to ensure coordination of more mundane things like collecting the child from school. Other important details include a specific holiday schedule with dates and times. If the parenting plan is part of divorce proceedings, the court will be able to enforce it. Breaching the parenting plan may be treated as a criminal offence.
Children’s Act and other legislation
The Children’s Act incorporated Section 4 of the Prevention of Family Violence Act 133 of 1993 and the Natural Fathers of Children born out of Wedlock Act 86 of 1997. Sections within these Acts also emphasise the parental rights and responsibility of both parents regarding the care and contact of the child. The legislation covers the parental right and duty to input into major decisions regarding the child’s future, as well as the daily decisions about their care, contact, welfare, and personal development. By law, parents are obliged to consult and cooperate on nearly all important decisions, including those pertaining to living arrangements, health, education, financial obligations, legal matters and discipline.
The Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards their child:
- To care for the child
- To keep contact with the child
- To act as guardian of the child
- To contribute to the maintenance of the child
Both parents of a minor have equal rights and responsibilities, but when they are not living together, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents, as detailed in the parenting plan.
Always seek the advice of an excellent divorce lawyer for child care and contact
At Cape Town family lawyers, we know how important it is for children to have a stable parenting environment post-divorce. We know that co-parenting decision-making is not always easy, even when you both have your child’s best interests at heart. This is particularly true when it comes to issues like relocation and schooling, where parents may fundamentally disagree. Sometimes the only recourse is through mediation or, as a very last resort, through the courts. We can arrange mediation or help you bring your case before the courts, if necessary, and support you through the process. We have a track record of helping deserving parents win care or increased contact time with their children.
Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email email@example.com to discuss your case in confidence.
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- I’m divorced. Can I move abroad with my child?
- International child relocation
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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.