In our modern world filled with married, unmarried, separated and/or divorced parents much has been said about the relationship between parents and children, and the exercise of parental rights and responsibilities that may stem from such a relationship. What is not often discussed is the relationship between grandparents and children and whether the grandparents are entitled to exercise any rights in respect of their grandchild.
The reality is that South African law does not automatically afford grandparents any rights in respect of their grandchildren and while in most cases the advent of becoming a grandparent is joyful and positive experience, in some cases the experience is bitter-sweet.
Any conflict between parents and grandparents usually results in grandparents having no contact with their grandchildren. This is often the case in circumstances where parents separate and/or divorce, and the resultant relationship between the grandparents and the parents, especially the parent who has primary care, greatly influences whether a grandparent has contact with a grandchild.
This does not mean that grandparents must resign themselves to not having a relationship with their grandchildren.
The Children’s Act, 38 of 2005, provides that any person having an interest in the care, wellbeing or development of a child may apply to an appropriate court for an order:
- In terms of Section 23 of the Act, granting them the right to have contact with and/or to care for a child;
- In terms of Section 24 of the Act, granting them the guardianship of the child.
In considering applications in terms of Sections 23/24 a court will take the following into account:
- The best interests of the child concerned;
- The relationship between the person making the application and the child;
- The degree of commitment the person making the application has shown towards the child (only specified for Section 23);
- The extent to which the person making the application has contributed towards the expenses of the child’s birth and/or maintenance (only specified for Section 23); and
- Any other factor, which in the opinion of the court, should be taken into account.
In considering whether or not to proceed with an application in terms of Section 23/24 it is important to consider the following:
- To avoid unnecessary litigation, costs and acrimony attempts must be made to mediate any issues before commencing any litigation, except in cases where a child is being abused and/or neglected;
- The outcome of court processes in respect of children can never be guaranteed and should any application fail, it may only fuel further conflict and isolation;
- If an order for rights of contact/care is granted in terms of Section 23, this does not affect any parental rights and responsibilities any other person may have; and
- If an application is made for guardianship in terms of Section 24, it must be demonstrated why any current guardian is not suitable.