THE OFFICE OF THE FAMILY ADVOCATE
The family advocate assists parents in divorce proceedings to reach an agreement on disputed issues, namely care, contact and guardianship. If the parents are unable to reach an agreement, the family advocate evaluates their circumstances in light of the best interests of the child and makes a recommendation to the court regarding care, contact and guardianship.
WHAT DOES THE FAMILY ADVOCATE DO?
The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.
HOW DOES THE FAMILY ADVOCATE DO THIS?
Upon application by the parties, the Family Advocate institutes an inquiry during which the Family Advocate, assisted by a Family Counsellor (normally a trained social worker), interews the parties to ascertain their personal circumstances and the background details to their matter. The Family Advocate then interviews the children to allow them the opportunity to be heard. This prevents the child from having to appear in Court.
POINTS TO NOTE ABOUT THE FAMILY ADVOCATE
- The Family Advocate cannot become involved in any matter that has already been finalized by the Court.
- The Family Advocate cannot be subpoenaed to Court as a witness to give evidence on behalf of any party even if his/ her recommendation is in favour of that party.
- The recommendation of the Family Advocate is intended to assist the Court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless incorporated in a Court Order.
- The Family Advocate is a neutral institution and cannot act as the legal representative for either litigant, in a matter.
THE BENEFITS OF ENGAGING THE ASSISTANCE OF THE FAMILY ADVOCATE:
- 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 with regard to his/ her position in the parties’ pending divorce.
- The Family Advocate is a neutral person who focuses solely on the best interests of the child.
- The atmosphere at the Office of the Family Advocate is less rigid and solemn compared to that of a courtroom. It is therefore child-friendly.
- The Family Advocate uses techniques of alternate dispute resolution, which help reduce the acrimony between the parties.
- The Family Advocate may work in liaison with other professionals (example social workers, psychologists, psychiatrists, therapists), in assisting the family and to ascertain what is in the best interests of the child.
YOU MAY CONSULT THE OFFICE OF THE FAMILY ADVOCATE IF:
- There is a dispute regarding contact or care of a child.
- A person wants to draft a parental rights and responsibilities agreement.
- They want to register their parental rights and responsibilities agreements.
- A person wants to amend or terminate parental rights and responsibilities agreements registered with the Family Advocate.
- There is a dispute on whether the unmarried father of the child born out of wedlock has satisfied the requirements which makes him eligible to acquire full parental rights and responsibilities in terms of the law.
- Courts also make orders that the Family Advocate has to conduct an inquiry as to what is in the best interest of the child.
WHEN DO YOU GO TO SEE THE FAMILY ADVOCATE?
You may visit the Family Advocate when you have a divorce pending in Court, and have minor or dependent children whose subsequent custody, guardianship or access arrangements are in dispute. There are other circumstances under which the Family Advocate may be consulted. These include any application for the variation of a custody, guardianship or access order, an application for the definition of access, a custody, access or guardianship dispute arising from the dissolution of a customary marriage, an application by an unwed father for custody, access or guardianship to his minor child or any other matter involving minor or dependent children, where the Court has specifically ordered the Family Advocate to intervene.
WHO PAYS THE FAMILY ADVOCATE?
The services of the Family Advocate are rendered to the public free of charge. The Family Advocate is a legal officer employed by the Department of Justice and acts as legal representative of the children.
WHAT ARE PARENTAL RESPONSIBILITIES AND RIGHTS?
- It includes, care of the child, contact with the child, guardianship of the child and maintenance of the child.
- The parents can enter into an agreement on the responsibilities and rights on their own terms and then register it with the Family Advocate or make it an order of court at the Family Court.
WHAT IS A PARENTING PLAN?
- A parenting plan is where parents are co-holders of parental responsibilities and rights including where and with whom the child is to live, the maintenance of the child, contact between the child and any of the parents or any other person and the schooling and religious upbringing of the child.
WHAT ARE THE CONSULTATION FEES?
- The family Advocate renders his/her services to the public free of charge.
- The parties to a legal dispute may be required to pay for additional expert reports, e.g. psychological evaluation, and other forensic tests where those are critical to the determination of the child’s best interests.
Contact Tania Abbotts of our offices on 011 874 1800
Article courtesy of the Department of Justice website: http://www.justice.gov.za/FMAdv/f_main.htm