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Question
Posted by: FIO | 2010/06/13

Section 21 and Guardianship

In terms of Section 21, I have full rights and responsibilities in respect of my son, which I assume means exactly the same rights and responsibilities as my ex.

I assume then that these rights and responsibilities are all rights and responsibilities as contemplated in Section 18, which includes, contact, guardianship etc. However, in order to excercise these rigths and responsibilities, a parenting plan needs to be drafted.

This has been done.

But now OFA says they cannot register my parenting plan as they are not allowed to authorise guardianship, which can only be done in the High Court.

But if I qualify in terms of Sections 21, and there are not objections of any sort, and all terms of contact, access etc have detailed in the Parenting Plan, surely an application for Guardianship should not be a requirement, unless there is an objection to guardianship from the ex? There is no objection. Although the plan does not state guardianship, why should this be a requirement in the plan if the plan already acknowledges Section 21 Full rights and responsibilities subject to conditions stipulated in the contect of the plan. It is impossibloe to detail every possible contect and application of full rights and responsibilites, so it makes sense only to list the restrictions orconditions,and should any furtehr develop, thed=process of mediation will sort that out int he future.

If I have to apply for guardianship, then surely my ex is in the same boat and should also apply for guardianship, since we both have full and equal rights and responsibilities subject to the limitations and conditions detailed in our Parenting Plan?

So why wont OFA register Plan, and why do they say I must applyto High Court?

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Our expert says:
Expert ImageFamily law expert

There are well founded arguments to the effect that the current legislation does not go far enough in eliminating differences in treatment of children born in or out of wedlock, as it still displays undue maternal preference. Unfortunately as far it relates to obtaining gaurdianship, you will have to approach the High Court.

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Our users say:
Posted by: family law expert | 2010/06/15

There are well founded arguments to the effect that the current legislation does not go far enough in eliminating differences in treatment of children born in or out of wedlock, as it still displays undue maternal preference. Unfortunately as far it relates to obtaining gaurdianship, you will have to approach the High Court.

Reply to family law expert
Posted by: FIO | 2010/06/14

G-Dad: Since April 1st 2010, parenting plans no longer need to go through any court, they can be drafted by consenting parents, signed, and registered with OFA. I have confirmed this with OFA. They reckon they can register mine, but not grant me guardianship.

And you dont need an attorney to register a parenting plan. It must just be in the approproiate format, satisfy OFA that it is in the childs best interests, and they will register it. And once registered, it becomes legally binding. I toook mine persobnally to OFAin JHB, and they had no problem accepting it for preusal and registering, until the day before they were going to stamp it, a meeting was convened to discuss this matter of guardianship. Had I taken my plan ina week earlier, it woudl have gone through, and from there it woudl not have been able to be reversed. So I missed out by a few days!

Reply to FIO
Posted by: FIO | 2010/06/14

Spoke to OFA, and they feel the law contradicts itself in that it gives full rights, but then requires those rights to be granted by a court. Doesn''t make sense, and is in fact still then discriminatory against men. So section 21 actually means sweet f..all !!

They also said that should a clause be included in plan that does not contest guardianship as such, but it must be stated, then it does nothave to go to high court. Problem is that ex may now start her crap again and not agree to an Addendum clarifying this, which will mean the whole frigging process will start over again, but this time I will make it clear that should she not agree, I will take it to court,a nd I will fight for all costs relating to the matter be covered by her should she " lose" , orshould my application be granted, simply because there is no valid reasonwhy she should contest it. I will make her pay, or at least do my best to make sure she pays as much as can possibly be claimed.!

Reply to FIO
Posted by: G-Dad | 2010/06/14

I know of a similar case, most fathers with child born out of wedlock are under the impression that they by default has all these rights, only the high court can grant the father these rights, once the high court granted the father those rights only then can the FA really register the parenting plan, not even the children court can do that, only the high court.

Reply to G-Dad
Posted by: Momof2 | 2010/06/14

If I remember correctly ... the FA goes through the parenting plan first then it has to be heard in court by a judge before it could be made an order of court. Thereafter they only register it. That''s the procedure we had to follow anyway.

Reply to Momof2

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