.png)
According to the Department of Justice and Constitutional Development of the Republic of South Africa, the Family Advocate can amend or terminate parental rights and responsibilities agreements registered by the Family Advocate’s office. This means that the parties do not have to go to court if they want to amend the agreement when the need arises.
In the process of consulting, if the parties reach agreement on disputed issues the matter does not proceed to trial, thereby saving legal costs and time.
Courts or Judicial officers are required by law to consider the report and/ or recommendations of the Family Advocate when making a decision as to what is in the best interest of the minor child.
Courts will not readily give a decree of divorce where there is a dispute regarding minor children without the report or recommendations of the Family Advocate.
Parental rights and responsibilities agreements or parenting plans registered with the Family Advocate have the same legal effect as an order of court.
The Office of the Family Advocate affords the child an opportunity to be heard regarding his/ her position in the parties’ pending divorce.
According to section 34 of the Children’s Act and Regulations Act 38 of 2005, (1) a parenting plan- (a) must be in writing and signed by the parties to the agreement; and subject to subsection (2), may be registered with a family advocate or made an order of court.
(2) An application by co-holders contemplated in section 33(1) for the registration of the parenting plan or for it to be made an order of court must-
(a) be in the prescribed format and contain the prescribed particulars; and
(b) be accompanied by a copy of the plan.
An application by co-holders contemplated in section 33(2) for the registration of (a) be in the prescribed format and contain the prescribed particulars; and be accompanied by-
a copy of the plan; and
a statement by-
(aa) a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker, or psychologist; or
(bb) a social worker or other appropriate person contemplated in section 33(5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.
A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
A parenting plan that was made an order of court may be amended or terminated only by an order of court on application-
(a) by the co-holders of parental responsibilities and rights who are parties to the plan;
(b) by the child, acting with leave of the court; or
(c) in the child’s interest, by any other person acting with leave of the court.
Conclusively, if a parenting plan is registered by a Family Advocate, there is no need for it to be made into a court order as this has the same legal effect as an order of court.