Towards a more uniform approach to parenting coordination in South Africa

Authors

DOI:

https://doi.org/10.17159/1727-3781/2022/v25ia12776

Keywords:

Co-parenting conflict, high-conflict relationship, family dispute resolution processes, family mediation, parenting coordination, parenting coordinator, decision-making powers, best interests of the child, parental responsibilities and rights, parenting disputes, divorce, relationship breakdown, parenting plans, settlement agreements, interdisciplinary collaboration, child-centred team-building approach, co-parental solidarity, parallel co-parenting, unlawful delegation of judicial authority, Family Dispute Resolution Bill, 2020, Children’s Act 38 of 2005, Guidelines on the Practice of Parenting Coordination in South Africa

Abstract

Because of the need to mitigate the damage done to children by chronic conflict between co-parents after divorce or family breakdown, the process of parenting coordination has been embraced by South African courts. In terms of the process, a parenting coordinator will first attempt to facilitate resolution of the parenting disputes by agreement of the parties, but if this attempt fails, the parenting coordinator has the power to make directives regarding the disputes which are binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise. Although parenting coordination has flourished over the past decade, there still seems to be uncertainty and a lack of uniformity about various aspects regarding the process and the role and functions of a parenting coordinator. First of all, we have the Guidelines on the Practice of Parenting Coordination in South Africa (SA Guidelines), drafted by a task team of the National Accreditation Board for Family Mediators (NABFAM) to provide guidance for parenting coordinators concerning minimum qualifications, ethical obligations and conduct, practice and procedure, and children’s participation in the process. In addition, the South African Law Reform Commission published the draft Family Dispute Resolution Bill, 2020, which deals with the process of parenting coordination in Chapter 7. Very importantly, we also have various court decisions dealing with parenting coordination in South Africa, which provide some guidance. However, the SA Guidelines, the provisions of Chapter 7 of the Bill and our court decisions are not always aligned and provide different answers to important underlying theoretical questions about various issues, such as the circumstances under which a parenting coordinator should be appointed; the issues that could be dealt with by a parenting coordinator; whom to appoint as a parenting coordinator; the approach to be followed in the parenting coordination process; the inclusion of children in the parenting coordination process; the nature of the parenting coordination process; confidentiality in the process; and a parenting coordinator’s relationship with the court and the parties’ legal representatives. A lack of consensus regarding these issues has given rise to diverse practices among professionals and confusion for all involved in the parenting coordination process. This article therefore endeavours to provide more clarity and certainty on these issues, taking international best practice into account.

Downloads

Download data is not yet available.

Metrics

Metrics Loading ...

Author Biography

Madelene De Jong, University of Limpopo

Prof/Dr Madelene (Leentjie) de Jong completed her BLC degree in 1984 and her LLB degree in 1986 at the University of Pretoria. She started her working career in Pretoria in 1987 as a candidate attorney at Couzyn, Hertzog & Horak Inc. After her admission as an attorney of the High Court of South Africa, she joined Du Plessis & Eksteen, where she practised as an attorney from 1989 to 1990. She joined Unisa in 1991 as a lecturer in Family Law in the Department of Private Law. She was promoted to a senior lectureship in 1994, an associate professorship in 2004 and a full professorship in 2008. She retired from Unisa at the end of 2019 and is now a full-time mediator, parenting coordinator and divorce liquidator. She was also appointed as a research associate in the School of Law at the University of Limpopo at the end of 2020.

In 2003 she obtained her LLD degree from Unisa on the strength of a thesis entitled “Divorce mediation in South Africa – a comparative study”. She is the co-author of four books and has published many articles on family law and, more specifically, matrimonial property law upon divorce, maintenance matters, divorce or family mediation, family arbitration and parenting coordination in various legal journals. In 2008 and 2013 she received the Hugo de Groot prize for the best short contribution to the Journal of Contemporary Roman Dutch Law and in 2018 she received the Hugo de Groot prize for the best article in this journal. Prof De Jong is a C1 NRF rated researcher.

She has delivered papers at various national and international conferences, mainly on alternative family dispute resolution, matrimonial property law and maintenance matters.

Dr de Jong is accredited as a divorce and family mediator and a parenting coordinator by the South African Association of Mediators (SAAM). She has been practising as a part-time family mediator since 2004.

She is presently serving on the advisory committee of the South African Law Reform Commission’s Project 100D (Family Dispute Resolution: Care of and Contact with Children) and acting as project leader of the advisory committee of the South African Law Reform Commission’s Project 100B (Review of the Maintenance Act 99 of 1998).

She is also serving on the Board of Management of Child Welfare Tshwane and the Board of Management of SAAM.

References

Bibliography

Literature

Baum SH "Online Mediation in a Time of Coronavirus" 2020 New York Dispute Resolution Lawyer 34-42

Carter DK and Frankel DN "Parenting Coordination and Confidentiality: A (Not-so) Delicate Balance" 2020 FCR 68-82

Coates C et al "Parenting Coordination for High Conflict Families" in Singer JB and Murphy JC (eds) Resolving Family Conflicts (Ashgate Hampshire 2008) 277-295

De Jong M "Child-informed Mediation and Parenting Coordination" in Boezaart T (ed) Child Law in South Africa 2nd ed (Juta Cape Town 2017) 134-163

De Jong M "Mediation and Other Appropriate Forms of Alternative Dispute Resolution upon Divorce" in Heaton J (ed) The Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta Cape Town 2014) 577-629

De Jong M "Suggested Safeguards and Limitations for Effective and Permissible Parenting Coordination (Facilitation or Case Management) in South Africa" 2015 PELJ 149-177

De Jong M "Suggestions for a Divorce Process Truly in the Best Interests of Children (2)" 2018 THRHR 179-193

Deutsch RM, Coates CA and Fieldstone LB "Parenting Coordination: An Emerging Role to Assist High Conflict Families" in Fieldstone LB and Coates CA (eds) Innovations in Interventions with High Conflict Families (Association of Family and Conciliation Courts Madison Wisconsin 2008) 187-221

Deutsch RM, Misca G and Ajoku C "Critical Review of Research Evidence of Parenting Coordination's Effectiveness" 2018 FCR 119-134

Fidler BJ and McHale J "Building and Enhancing Efficacious Coparenting in Parenting Coordination" 2020 FCR 747-759

Fieldstone L et al "Training, Skills, and Practices of Parenting Coordinators: Florida Statewide Study" 2011 FCR 801-817

First A "A New Agreement to Mediate: Guidelines for Ethical Practice in the Digital Space" HNLR 405-430

Hayes SW "'More of a Street Cop than a Detective': An Analysis of the Roles and Functions of Parenting Coordinators in North Carolina" 2010 FCR 698-709

Hayes SW, Grady M and Brantley HT "E-mails, Statutes, and Personality Disorders: A Contextual Examination of the Processes, Interventions, and Perspectives of Parenting Coordination" 2012 FCR 429-440

Heaton J and Kruger JM South African Family Law 4th ed (LexisNexis Durban 2015)

Henry WJ, Fieldstone L and Bohac K "Parenting Coordination and Court Relitigation: A Case Study" 2009 FCR 682-697

Kirkland K and Sullivan M "Parenting Coordination (PC) Practice: A Survey of Experienced Professionals" 2008 FCR 622-636

Mandarino K, Kline Pruett M and Fieldstone L "Co-parenting in a Highly Conflicted Separation/Divorce: Learning about Parents and their Experiences of Parenting Coordination, Legal, and Mental Health Interventions" 2016 FCR 564-577

Manyathi-Jele N "Court Ordered Swopped Babies to Remain with Families Raising Them" 2016 (April) De Rebus 5-8

Martalas AM Alternative Dispute Resolution Post-Divorce or -Family Separation (PhD-thesis Utrecht University 2018)

Martalas A "Child-Participation in Post-Divorce or -Separation Dispute Resolution" in Liefaard T and Sloth-Nielson J (eds) The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead (Brill Leiden 2016) 895-912

McHale JP et al "Perspectives of Mothers, Fathers, and Parenting Coordinators Concerning the Process and Impact of Parenting Coordination" 2020 FCR 211-226

South African Law Reform Commission Discussion Paper 148, Project 100D: Alternative Dispute Resolution in Family Matters (SALRC Pretoria 2019)

South African Law Reform Commission Issue Paper 31 on Project 100D: Family Dispute Resolution: Care of and Contact with Children (SALRC Pretoria 2015)

Saini M, Belcher-Timme R and Nau D "A Multidisciplinary Perspective on the Role, Functions, and Effectiveness of Parenting Coordination" 2020 FCR 658-672

Sullivan MJ "Parenting Coordination: Coming of Age?" 2013 FCR 56-62

Sullivan M and Burns A "Effective Use of Parenting Coordination: Considerations for Legal and Mental Health Professionals" 2020 FCR 730-746

Task Force "New AFCC Guidelines for Parenting Coordination (2019)" 2020 FCR 644-657

Yasenik L, Graham J and Fieldstone L "Child Voice in Parenting Coordination: Toward a Model of Inclusion" 2020 FCR 760-773

Case law

Central Authority v TK 2015 5 SA 408 (GPJ)

Centre for Child Law v NN and NS (GNP) (unreported) case number 32053/2014 of 16 November 2015

CM v NG 2012 4 SA 452 (WCC)

H v H (SGJ) (unreported) case number 06274/2012 of 10 September 2012

Hummel v Hummel (SGJ) (unreported) case number 06274/2012 of 10 September 2012

LM v Goldstein 2016 1 SA 465 (GPJ)

M v V (Born N) 2011 JOL 27045 (WCC)

Minister of Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC)

S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC)

S v S (GSJ) (unreported) case number 2019/13892 of 12 February 2020

Schneider v Aspeling 2010 3 All SA 332 (WCC)

Sonderup v Tondelli 2001 1 SA 1171 (CC)

SW v SW 2015 6 SA 300 (ECP)

TC v SC 2018 4 SA 530 (WCC)

Van der Merwe v Bruwer and Van der Merwe (WCC) (unreported) case number 12624/18 of 21 December 2018

Legislation

Children's Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Legal Practice Act 28 of 2014

Protection of Personal Information Act 4 of 2013

Government publications

Draft Family Dispute Resolution Bill, 2020

Uniform Rules of Court, as amended

Internet sources

DLP Compliance 2020 Ultimate Guide to the POPIA – South Africa's Privacy Law https://www.tessian.com/blog/ultimate-guide-to-the-popia-south-africas-privacy-law/ accessed 13 September 2021

Family Mediators' Association of the Cape 2016 Guidelines on the Practice of Parenting Coordination in South Africa http://www.famac.co.za/parenting-coordination accessed 1 October 2021

Published

2022-07-28

How to Cite

De Jong, M. (2022). Towards a more uniform approach to parenting coordination in South Africa. Potchefstroom Electronic Law Journal, 25, (Published 28 July 2022) pp 1 – 37. https://doi.org/10.17159/1727-3781/2022/v25ia12776

Issue

Section

Articles