South African law does not make specific provision for grandparents’ rights over their grandchildren. The new Children’s Act 38 of 2005 Law does however provide for third parties who have an interest in the care, well-being, or development of a child to apply either to the High Court or to the Children’s Court for an Order for Care, Contact or Guardianship over minor children.
A grandparent wanting to establish certain rights over a grandchild should not take this route lightly, as a failed application could well cause disgruntled or hostile parents to further isolate the grandparent and/or alienate the children against their grandparents.
When considering such application, the Court is required in terms of Section 23 and 24 of the Children’s Act to have regard to the following –
· The best interests of the minor child;
· The relationship between the Applicant (grandparent) and the minor child and any other relevant person and the child;
· The degree of commitment that the grandparent has shown towards the child;
· The extent to which the grandparent has contributed towards the child’s financial / maintenance requirements;
· Any other factor which in the opinion of the Court ought to be taken into consideration.
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.”
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Author – Jessica Gooding