PARENTING PLANS IN TERMS OF THE CHILDREN’S ACT: SERVING THE BEST INTERESTS OF THE PARENT OR THE CHILD?

The Children’s Act 38 of 2005 provides the legal basis for the reshaping of the exercise of parental responsibilities and rights. In previous case law the custody of a child was assigned to the parent who had been the primary caretaker during the subsistence of the marriage relationship, although the overriding factor remained the best interests of the child. This model has proved to be insufficient in order to promote the need for a child to be brought up in a stable family environment or, where this is not possible, in an environment that is as close as possible to a caring family environment; including the child’s right to maintain close contact with both parents. Facing this shortfall, the legislature adopted a “parenting-plan” model in terms of the Children’s Act, which attempts to help parents to set aside their differences and work out a plan which is in their child’s best interests. The parenting plan further attempts to help parents in exercising their parental responsibilities and rights over their children. The purpose of this article is to analyse this legal solution in an effort to ascertain whether it really promotes the best interests of the child, namely, promoting his/her right of growing up in a close relationship with both parents.

PEMENUHAN HAK ANAK DI INDONESIA MELALUI PERENCANAAN PENGASUHAN, PENGASUHAN TUNGGAL DAN PENGASUHAN BERSAMA

In many countries, joint custody has replaced and is considered better than sole custody. It is also deemed more in line with the gender equality principle which demands both parents to share responsibility for the custody and care of the child post-divorce. This article discusses how judges in divorce cases decide on child custody, and the extent to which they consider the merits of joint or sole custody and demand divorcees to consider making a parenting plan in the best interest of their children. Qualitative data is collected from the District Court and Religious Court at Semarang and by analysing 4 court decisions regarding child custody. Interestingly, none of the Courts above possess or implements a policy or have some procedural ruling obligating judges in divorce cases to demand parents to consider joint custody or making a parenting plan post-divorce. Obligatory pre-trial mediation is geared more as a procedural-formalistic attempt to dissuade parties to continue with divorce.

Co-parent therapy and the parenting plan as transitional phenomena: working psychoanalytically with high-conflict separating and divorcing couples

High-conflict separating and divorcing couples often struggle with unconscious conflicts that are projected onto arguments about the children resulting in interminable disputes. Approaches that primarily emphasise parenting and communication skills, without a more in-depth focus, are insufficient to address these complicated dynamics. In contrast, I offer a model of psychoanalytic co-parent therapy that enables the promotion of containment, reduces splitting, destructive aggression, and defensive projection, helps the partners become more psychologically separate, and allows access to feelings of loss. A key component of this model is the development of the parenting plan, a shared agreement about coparenting the children that functions on both a conscious and unconscious level. The therapist works with high-conflict couples to create the parenting plan, whilst at the same time addressing the underlying psychological vulnerabilities. The parenting plan may serve as a type of transitional object for the couple, facilitating their psychological development, and aiding in their transition from a separating or divorcing couple to a co-parent couple. This process can be internalised, communicated to the children, create less conflict, mitigate the enduring impact of the loss, and benefit the entire family.

Parenting Plans Attentive to the Needs of the Divorcing Family

Practical parenting plans should prioritise the needs of the divorcing family by giving voice to the feelings, needs and rights of the children while reflecting on the requests of the parents. If the needs of both parents and their children are not signified, parenting plans will be redundant, as families will not be able to implement parenting plans to structure their lives post-divorce and dysfunction will set in. Establishing the needs of the divorcing family is important when professionals structure a parenting plan as representative parenting plans will assist in managing post-divorce conflict dynamics. This article will present rich qualitative data to demonstrate the needs of the divorcing family and alert professionals to the importance of need representation in parenting plans.

Parenting Coordination

Parenting coordination is a dispute resolution process generally occurring after a parenting plan has been established, to assist parents in chronic high conflict coparenting. Mental health professionals and family law professionals provide parenting coordination to assist coparents to implement their previously agreed to or court-ordered parenting plan in a child-focused and expeditious manner to minimize parental conflict, thereby reducing risk to children. This chapter summarizes the parenting coordinator’s mandate (education, conflict resolution, case management, decision-making), identifies risks and benefits, and addresses considerations when intimate partner violence (IPV) is a factor. The parenting coordination process from start to finish is discussed—managing referrals, screening for IPV, risk factors, and suitability; conducting the informed consent process; intake and information gathering; consensus-building phase (conflict management, resolution, and negotiation) and decision-making (arbitration). Parenting coordination is not a panacea for all high conflict coparenting situations. Inappropriate cases are identified and guidelines, professional standards, and training requirements are summarized.