Rabia Mayet | rabiamayet@radioislam.co.za

30 October 2024

5-minute read

Put into place in cases where parents’ divorce or separate, the parenting plan protects the rights of both children and parents from such families. But attorney Farhana Ismail says that the admin related to divorce where child custody is a factor “isn’t as simple as it seems”. Specialising in divorce and family law, and with 20 years of experience in the field, Farhana states that the rate of divorce in the Muslim community has increased, and even though Islam advocates for things to be done in a civil and fair manner, couples often end up in court in litigation battles.

It is essential to distinguish between the primary resident parent and the non-resident parent; where the primary caregiver will be the resident parent. The non-resident parent retains all of his or her rights and responsibilities in terms of the law, including guardianship. In instances where parents are amicable, the parenting plan does not have to be made an order of the court, whereas in situations where parents cannot communicate and agree on aspects related to the child’s wellbeing, a court order is the only way to ensure that no parent oversteps their boundaries.

The purpose of the parenting plan is to regulate the access and the contact that is going to happen between the couple. It begins with mediation between the parents who would then use an attorney, a social worker, a psychologist or the office of the family advocate to draw up the plan. The parenting plan covers every aspect of the child’s day-to-day life up until the time the child turns 18, starting with contact visits. Structured contact with the non-resident parent can be supervised if the parent has a substance abuse problem, is negligent, or could possibly endanger the child’s life. Unsupervised contact is where the school-going child would stay with the non-resident parent every alternate weekend from a Friday after school or madrassah until a Sunday evening, in order for the resident parent to prepare the child for school the following day. Another scenario is where the child stays over on a week night at the non-resident parent every week. Long and short holiday periods are split depending on the consensus between parents. Public holidays and special days like Mother’s Day, Father’s Day and birthdays, or religious holidays like Eid would have to be shared so that all parties get their time with the child, and the child gets equal time with both parents. The plan also focuses on parents navigating around care issues for their child like education, religion, upbringing and laying the child’s moral fibre in terms of methods of discipline, as well as medical and dental decisions. Certain things like funerals, which cannot be planned in advance, are not regulated in the parenting plan and these are given leeway and adjusted depending on the situation that arises. Additionally, parenting plans deal with issues like medical emergencies where the parent who has the child in that time is obliged to contact the other parent immediately. Maintenance issues can also be laid out in the parenting plan, covering aspects like school fees, personal items for the child like clothing, and medical aid cover. In acrimonious cases, even aspects like who will drop off, who will pick up, specifying time and place if it is not at one of the parents’ homes, and travel consent if the one parent is travelling overseas with the child, needs to be detailed. Certain days even need to be split in half, in respect of the available time.

Depending on the child’s age and level of maturity, and as they get older, their opinions should be taken into consideration Children’s views and wishes are often not taken into account as “children have a voice, but they don’t have a choice,” says Farhana. In instances where the kids have their own weekend activities planned, or are having their friends over, or are invited out with friends, parents need to be flexible and adjust the plan by mutual agreement to change times, days, and duration of visits. When it comes to choosing not to go to the non-resident parent without a valid reason, kids should not be entertained.

The Children’s Act has been put in place to protect the rights of children. Both parents are cited on the child’s birth certificate thus making them co-guardians in their responsibilities towards the child, where both parents need to be involved in aspects like applying for the child’s birth certificate or allowing the other parent to take their child out of the country on holiday. The only place these rights can be taken away is by a court of law under extenuating circumstances. In cases of abuse and domestic violence that leads to the breakdown of a marriage, where interim orders are put in place, it is very difficult to have a parenting plan in place. Allegations levelled against the alleged perpetrator where a protection order comes about cause feelings of insecurity and instability in the child. Details in the parenting plans should be clear and not ambiguous as this can result in the police and the courts getting involved.

Dealing with the practicalities of shared parenting depends of the maturity of the parents. Farhana stressed that “the parenting plan will not work if parents do not co-parent”. Kids are often dragged into their parents’ problems, which complicates the parenting plan. In cases of acrimony, parents often use a third party or a neutral zone for pick-ups and drop-offs which make things even more difficult for the child. If parents work together, deal with their emotions, and put aside their differences it will make it easier for their kids to move between the two spaces. Communication and flexibility are key aspects of the parenting plan.

Listen to the full interview with Faaiza Munshi on the New Horizons program.