Submitted by Veerash Srikison, advocate and internationally accredited civil and commercial mediator at Fair Pratice – Family and Legal Mediation Services, Johannesburg. Click here for further information on family mediation and how it can benefit you and your family.
Every relationship has it’s difficulties, after all we are human beings with emotions that make us think and feel differently over time. When these become unbearable and you are in a marriage with children, you have to make the traumatic decision of leaving the marriage, while watching your children realise their family is about to fall apart.
In my view as a mediator, in this situation it is important for you to realise that you need to remove yourself from the marriage but not the relationship. When children are involved in a decision to separate or divorce, your role as parents still continues, therefore the relationship you have with each other, does not end, but evolves. With this evolution you both need to put mechanisms into place to cope with the changes that will now affect every one of you.
Find a way to talk to each other
Once you have decided to separate and begin the divorce process, before finding legal representatives you need to find a way to talk to each other about how your children will be taken care of during this emotional process. If this is too difficult you will need a mediator who can assist you both with legal information and in helping each of you to express your thoughts and opinions surrounding your children.
Find out out what is in your children’s best interests
This process is not about taking control of your children to gain leverage in other areas of your divorce process, such as division of your assets or claim to maintenance. The mediation process will facilitate a discussion on what is in the best interests of your children. Your mediator must be fully aware of the contents of the Children’s Act and not encourage you to give in to clauses that they use for all other clients. Remember your family is unique therefore the terms of your family arrangements need to address your specific needs.
Where should your children live?
During this initial phase, you both need to agree on where your children should live taking into account their emotional well-being. To understand what is best for your children, you need to look at their age, stage of development and maturity. You may need to draw on the professional advice of social workers, psychologists and other therapists who know your children. There are various options you can consider. You could have shared residency or agree that one parent has primary residency. Either option must have a contact schedule that gives both parents an opportunity, if in the best interests of the children, to develop a relationship with their children.
It is important to understand that this residency arrangement can be changed over time. Like your relationship as parents, your circumstances will constantly change. You need to have a clause in your parenting document that allows for the arrangements to be reviewed. If, for example, your children were 3 and 5 years old when you divorced, you both may have decided that the mother have primary residency at the time, 10 years later, when your children have matured, this could be changed to shared residency where they stay a week with mum and a week with dad. Your review clause will allow for you both to make these changes without having to litigate every change in court.
The Children’s Act also makes provision for hearing the voices of your children who can provide valuable incsight into what works best as they grow older. Their scholastic and extra mural activities may demand that they have less movement during the week or that exceptions have to be made during exams.
The parenting plan
To engage in litigation with each other in order to determine what is best for your children will dilute your personal involvement in deciding what is best for your family. Rather use processes where you are both encouraged to provide feedback on your family routine and how your children respond to changes.
With the help of professionals who understand the law you can create a detailed agreement or parenting plan tailored to your need about how you will both look after your children. Once this plan has been drawn up, you can avoid on-going conflict over minor issues. By working and communicating effectively through mediation, you can maintain an amicable relationship for your children.
When deciding the best approach to ending your marriage ensure that your processes allow for phasing-in transitional changes to your children’s routine and structure. In addition involving them in your decision making processes will make accepting their new family life less traumatic.
Please note that the contents of this article are for information purposes only and do not replace a consultation tailored to your needs.
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