The rights of grand­par­ents


Your Pregnancy - - Contents -

For many South Africans, grand­par­ents are the back­bone of the fam­ily, play­ing an im­por­tant role in car­ing for and im­part­ing val­ues to their grand­chil­dren. But what if this vi­tal re­la­tion­ship isn’t in­tact? What rights do grand­par­ents have, and do they have le­gal re­spon­si­bil­i­ties too? asks Tracey Hawthorne THERE CAN BE no clearer il­lus­tra­tion of the im­por­tance of grand­par­ents in a child’s life than when grate­ful 27-yearold law grad­u­ate Njab­ulo Ntombela led his gogo onto the stage at the Univer­sity of KwaZulu-Na­tal grad­u­a­tion cer­e­mony in April 2018. Nomkik­ilizo Ntombela, who is 89, stepped in to help raise Njab­ulo when his mother died when he was 14. Njab­ulo de­scribed Nomkik­ilizo (who’s ac­tu­ally his great-grand­mother) as his pil­lar of strength, and said she’d played a sig­nif­i­cant role in his life. He used the grad­u­a­tion cer­e­mony to pub­licly

ac­knowl­edge the sac­ri­fices she’d made for him. Grand­par­ents are in­deed very im­por­tant in the lives of par­ents and grand­chil­dren, con­firms clin­i­cal psy­chol­o­gist Lameze Abra­hams. “Due to the so­ciopo­lit­i­cal con­text in South Africa, par­ents may work long hours and some­times live away from their chil­dren. Many par­ents are sup­ported by grand­par­ents, who as­sume the role of ei­ther tem­po­rary or some­times pri­mary care­givers of their grand­chil­dren.” Even in sec­ondary roles, the im­pact and in­flu­ence of the grand­par­ents on the lives of their grand­chil­dren is enor­mous, notes Abra­hams. “What is es­sen­tial for grow­ing chil­dren is the qual­ity of the bond or at­tach­ment re­la­tion­ship be­tween the child and carer (in this case the grand­par­ent), as we know that a se­cure bond can sup­port healthy devel­op­ment for chil­dren. Grand­par­ents also have the ex­pe­ri­ence and knowl­edge of hav­ing raised chil­dren, and can ap­ply that ex­pe­ri­ence to op­ti­mise their grand­child’s growth and devel­op­ment.” But what hap­pens if this im­por­tant re­la­tion­ship is thwarted in some way? For ex­am­ple, the mother of a child born out of wed­lock may refuse the pa­ter­nal grand­par­ents con­tact with the child, or a di­vorce may cause a break­down in the ex­tended-fam­ily re­la­tion­ships.


“Grand­par­ents don’t have au­to­matic rights to their grand­chil­dren but in terms of Sec­tions 23 of the Chil­dren’s Act they can bring an ap­pli­ca­tion for con­tact,” says Sharusha Mood­ley of Breg­man Mood­ley At­tor­neys. “The courts con­sider the best in­ter­ests of the child, and if a spe­cial bond ex­ists, the courts usu­ally find that it would be in the chil­dren’s best in­ter­ests for grand­par­ents to con­tinue see­ing their grand­chil­dren.” That said, “It’s dif­fi­cult and ex­pen­sive for grand­par­ents to pur­sue visi­ta­tion rights through the courts, and me­di­a­tion is more ef­fec­tive and cheaper,” Mood­ley notes. “If par­ents and grand­par­ents agree to meet with some­one to fa­cil­i­tate a res­o­lu­tion of the dis­putes, most cases can be set­tled with­out ex­pen­sive lit­i­ga­tion and cost, both fi­nan­cial and emo­tional, for the fam­ily, and es­pe­cially the chil­dren.”


What hap­pens if a grand­par­ent is con­cerned that for some rea­son her grand­child may be at risk – for ex­am­ple, if she sus­pects there’s some sort of abuse hap­pen­ing at home, or the child is be­ing ne­glected? “Sec­tion 24 of the Chil­dren’s Act con­tem­plates that any in­ter­ested per­son, and this would in­clude a grand­par­ent, may ap­ply to court to pro­tect the best in­ter­ests of the child,” says Mood­ley. “This may in­clude an ap­pli­ca­tion to move the child to a place of safety, or for the fa­ther or grand­par­ents (de­pend­ing on cir­cum­stances) to ac­quire sole guardian­ship of the child and to al­low the mother only su­per­vised con­tact with the child. Ev­ery­thing de­pends on the cir­cum­stances of each case and the best in­ter­ests of the child.”


Ev­ery South African child has the right to an ac­cept­able stan­dard of liv­ing and qual­ity of life. Although the pri­mary re­spon­si­bil­ity to sup­port a child rests with the par­ents, the child’s best in­ter­ests are al­ways the most im­por­tant fac­tor, and this is why the obli­ga­tion may be ex­tended to the grand­par­ents. “And if there are no grand­par­ents or if they do not have the means to sup­port the child, the duty will be trans­ferred to the brothers and sis­ters,” adds Mood­ley. So if you’re a strug­gling sin­gle mother, and the fa­ther of your child isn’t pay­ing main­te­nance for some rea­son – he may be in prison or un­em­ployed, he may have ab­sconded, or he may even be dead – and you’ve ex­hausted your op­tions in the main­te­nance court, you can and should ap­proach the grand­par­ents for fi­nan­cial help. The fi­nan­cial po­si­tion of all par­ties will, of course, be taken into ac­count by the courts when de­cid­ing the amount of the con­tri­bu­tion to main­te­nance.


“If both par­ents die, and their de­ceased es­tate is in­ad­e­quate to cover the child’s sup­port, then the duty to sup­port will be ex­tended to the child’s ma­ter­nal and pa­ter­nal grand­par­ents jointly,” notes Mood­ley. And it doesn’t mat­ter if the par­ents were mar­ried when the child was born or not. Un­til re­cently there was a duty only on the moth­ers’ grand­par­ents if the child was born out of wed­lock, but a re­cent case in the High Court de­ter­mined that this duty ex­tended to the grand­par­ents on the fa­ther’s side too. How­ever, Abra­hams notes, “Grand­par­ents are ag­ing and many are pen­sion­ers, which can put a strain on both the grand­par­ent and grand­child in terms of fi­nan­cial re­spon­si­bil­ity and emo­tional abil­ity and strength. These con­cerns would need to be ad­dressed.”

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