The privilege and reality:
We are very fortunate to live within a 5km radius from my mother and my in-laws (yes, fortunate). They are involved in our daily lives and our two minor children get to see them at least once a week (if they are not on holiday as “pensioners”).
A result of this fortunate turn of events is that our minor children have a very close bond with their grandparents and they are used to them participating in their school events and functions, birthday parties and the like.
In South Africa it is also a reality that many children are in fact raised by their grandparents, alone or in support of a single parent.
Legal hampers and hope:
I often get asked the question whether grandparents have any legal rights in respect of minor children, or if the minor children can remain with the grandparents once the primary caregiver, they supported, pass away or should the minor children automatically return to the other biological parent, who might not have been so involved in their lives and resulting in the grandparents in effect losing their grandchildren as well.
In the case of Heuer and Heuer vs Alexander (Eastern Cape High Court, 2012) Judge Smith held 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”.
Unfortunately, the answer is that grandparents do not have any rights in terms of the Children’s Act, Act 38/2005 (“the Act”), however:
In terms of Section 7(f) of the Act, provides as follows:
When determining what is in the best interests of the child, have regard to, inter alia:
“(f) the need for the child –
(i) to remain in the care of his or her parents, family or extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition”.
The implications of this Act:
Despite grandparents not having any automatic right, the child does and on this basis the grandparents can enforce same.
Further to the above, section 23 of the Act allows any person who has an interest in the care, well-being or development of a child to apply to court for an order granting him or her contact with the child, or care of the child.
Contact will be regular visitation rights and an application for “care of the minor child” will include having the minor child residing primarily with the grandparents.
Which legal procedures are needed from you?
In bringing such an application an Expert report / a report by the Family Advocate’s Office needs to be filed, confirming that the relief requested will serve the minor child’s best interest and an assessment will be done to support whether the minor child should rather primarily reside with the grandparents (as opposed to the surviving biological parent). Parents can assist the grandparent’s application, after their death, by specifically nominating in their Will that the minor children should remain in the care of their grandparents upon their death, this will not constitute as a transfer of rights, but will support the grandparent’s application for guardianship / parental responsibilities and rights.
The Faure & Faure Inc. legal team can assist in this regard. For more information contact Marelize Meintjes on 021 871 1200 or email firstname.lastname@example.org.
Article written by Marelize Meintjies, Director at Faure & Faure Inc. For more information, email: email@example.com