FACILITATION – am I giving my parental rights away?

By Monday January 23rd, 2017 English, Family Law No Comments

Since 2008, most attorneys have automatically put a facilitation clause in a parenting plan or settlement agreement when parents split up. The parents may separate as partners/spouses, but they remain locked in a relationship as parents. The parenting plan or settlement agreement spells out how they will co-parent until the children turn 18 years old.

Sometimes the parenting plan or settlement agreement is unclear on an issue such as holiday contact. Other times the home circumstances may have changed and the parenting plan or settlement agreement must be adjusted. Most parents can sort this out between themselves by agreement, but other parents are unable to reach agreement without a fight.

It is for those cases where parents cannot speak to each other where facilitation comes in. (Quick note: facilitation might soon be renamed “parent co-ordination”).

The standard facilitation clauses will stipulate that the facilitator must first try and mediate the dispute. If mediation fails, then the facilitator may issue a Directive. This Directive can be as binding on the parties as a court order. This is serious stuff.

Let me explain why this is serious: when your children are born, you and your spouse/partner are automatically the guardians of your children and have parental rights over them. If all goes well, that is the end of it. But the law states that the High Court is the upper guardian of all children. In other words, if you and the other parent cannot agree, the High Court can override your parental rights over your children and make a decision on your behalf regarding your children.

That’s all good and well, because the High Court has judges who know what they are doing and they will seldom make a decision without the input of the Family Advocate or a psychologist or social worker who has investigated the children’s circumstances and their best interests.

But now, in the parenting plan, you and the other parent agree to give a facilitator the same powers as a High Court. I’m not saying it’s wrong and that you shouldn’t do it. But I am saying: know what you are doing and what you agree to.

If the facilitation ends with a mediated agreement, that would be first prize, but often the facilitation clause in the court order stipulates that the facilitator may appoint other experts to investigate your circumstances and you must pay their bills.

What if the facilitator decides that your children must go live elsewhere? If the process was fair and if it is in your children’s best interests, then you have saved a lot of time and money by having a facilitator. But if the process was not fair and your children are being harmed, then you may be forced to go to court, either to have the facilitator’s Directive overturned or to have the facilitator removed as facilitator.

Facilitation has helped a lot of children and it can be a great problem solver, but be aware of what you agree to. Read the clauses carefully. Ask a lot of questions.

Elmarie Neilson is a qualified facilitator with many years of experience.

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