Grandparents have rights too: A question of access to grandchildren

Posted on:
13 Aug 2018
Family, Personal
Posted by:
“I practically raised my grandchildren for the first few years of their lives and am very close to them. Unfortunately, my son recently passed away and now their mother refuses that I see them. Is there anything I can do?”
As a point of departure it is important to note that our South African law as a rule does not make specific provision for a grandparent’s rights over their grandchildren. That said, our Children’s Act 38 of 2005 does provide for a way to establish such rights. In terms of the Children’s Act any third party who has an interest in the care, well-being, or development of a child may apply to either the High Court or the Children’s Court for an order for care or contact over minor children. Thus a grandparent who wishes to establish rights over grandchildren would need to make use of section 23 of the Children’s Act.When considering bringing such an application to court it is important to note the difference between and order for care and one for contact. “Care” as defined in Section 1 of the Children’s Act includes providing the child with a suitable place to live, proper living conditions, financial support and protecting the child from abuse and harm. It also deals with guarding against any infringement of the child’s rights, directing the child’s education and ensuring the best interest of the child are the paramount concern in all matters affecting the child.

“Contact” on the other hand, in relation to a child, means to maintain a personal relationship with the child. If the child lives with someone else contact would entail communication with the child on a regular basis either in person or by telephone.

In an application for either care or contact the court will consider the best interest of the child, the relationship between the applicant and the child and the degree of commitment that the applicant has shown towards the child. Furthermore, in determining the best interest of the child the court will have regard to the need for the child to remain in the care of his or her parents or family and the child’s need to maintain a connection with his or her family, extended family, culture or tradition.

It is therefore important to note that an order granting a grandparent care or contact does not take away the parental rights and responsibilities another person has in respect of the child. For example, a mother does not lose her parental rights and responsibilities when the court assigns contact or care to the child’s grandparents, they will then merely be co-holders of parental rights and responsibilities in respect of the child.

In a recent court case it was stated that “grandparents, more often than not, play an important part in a child’s social and psychological development and usually take a keen interest in the upbringing of their grandchildren. The relationship with their grandchildren often assists and compliments parental care. There can therefore be little doubt that it is usually in a child’s best interest to maintain a close relationship with his or her grandparent.”

Should you feel strongly about being more involved with your grandchildren, it would be our recommendation that you consult with a family specialist to discuss your situation and how you could gain more access to your grandchildren.

This article was first published in Phatshoane Henney Attorneys’  July 2018 Newsletter.

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