Reducing Conflict

Apparently the majority of divorces are resolved without a great deal of conflict between the parents. These so-called 'friendly divorces' are presumed difficult for children, but not necessarily permanently damaging. Unfortunately, a significant number of divorcing parents become locked in bitter and sometimes violent disputes over custody and access arrangements. These situations are truly dangerous for children, and the Commission has attempted to find ways to reduce conflict between divorcing and separating parents to the benefit of the children. In this regard, the court should start with the assumption that, in the absence of issues regarding the child's physical, mental or emotional safety, the continued involvement of both parents in the child's life is the desired goal: this involvement ideally will be of the same quality post-separation as pre-separation. While not excluding the possibility of joint custody (as we now know it), the Commission is not equating the need of the child for the continued involvement of both his or her parents in his or her upbringing with the call for joint custody as the presumptive starting point in divorce

The use of the words 'custody', 'sole custody', 'guardianship', 'sole guardianship' and 'access' in the Divorce Act 70 of 1979 promotes a potentially damaging sense of winners and losers and more neutral language would help reduce conflict and let both parents focus on their responsibilities rather that their rights. This can be an important means of reducing parental conflict by defusing the winner-take-all custody-contest.

A number of jurisdictions can serve as models for new conflict-reducing language. For example, custody and access regimes could be replaced with concepts and terms like 'parental responsibility' (Australia), joint parental responsibility' (United Kingdom), 'shared parental responsibility' (Florida), or 'residential placement' and 'parenting functions' (the state of Washington). Custody itself is often replaced by the concept of 'residence' combined with decision-making authority. What is currently referred to as access may be referred to as 'contact', 'visitation' or 'parenting time' in other jurisdictions. The new terminology is often attached to new substantive legal regimes, some of which presume that Joint custody or shared parenting - or alternatively some form of shared decision making without equal time sharing - will be the norm.

The Commission is of the view that a shift to new, less loaded terminology is critical to reducing conflict in divorce. Coupled with our intention to reduce conflict, the Commission feels strongly that the legal regime under the Divorce Act 70 of 1979 must discourage the estrangement of parents and children, and that to do so the Act must ensure that parent-child relationships survive marital breakdown. Therefore, in addition to proposing new language to replace that of custody and access, the Commission concludes that parental decision-making roles should, in most cases, continue beyond divorce

The Commission concludes that the current Divorce Act terms 'custody' and 'access' should be replaced by the expressions 'care' and 'contact' respectively. By this, the Commission is not recommending a presumption that equal time-sharing, or what is currently referred to as joint physical custody, is in the best interests of all children. The Commission recognises that the details of time and residence arrangements for children will vary with the family involved. In view of the diversity of families facing divorce in South Africa today, it would be presumptuous and detrimental to many to establish a 'one size fits all' formula for parenting arrangements after separation and divorce.

Several other recommendations flow naturally from this proposed change of language