Your right as a Grandparent: 3 things your should know
A Grandparent or grandparents often fill the void for children when their own parents are not able to take care of them. Grandparents, having raised their own children before, can provide their grandchildren with significant wisdom and life-lessons which can be cherished. Grandparents are seen as more patient with their grandchildren than their own parents. Not only are some grandparents their grandchildren’s confidant, but very often they bail their grandchildren out of trouble.
1. Reasons why a grandparent would want to obtain care of their grandchildren
Grandparents raising their grandchildren is no longer linked to a specific race or culture but is taking place across the board. Here are just a few reasons as to why grandparents would have primary care and residence in respect of their grandchildren:
Many parents find themselves facing severe addictions (be it alcohol, drugs or gambling) which prevent them from being active and reliable parents in their children’s lives. Grandparents frequently step in at this point, when the addiction is being fought or when it just cannot be fought, in order to take care of their grandchildren so that they do not succumb to the decisions of their parents.
In the event when parents have been jailed and there is no one else to take care of the children, grandparents frequently make the decision for the children to come live with them.
Child abuse or neglect:
Thousands of children face abuse and neglect at the hands of their own parents. The abuse and neglect may sometimes be so severe that a grandparent is required to step in and “save” the children from their own parents. This experience is traumatic for both the children and their grandparents.
With the rise in the cost of living and very little knowledge on family planning, parents often find themselves in positions where they have more mouths to feed than food being available. Many grandparents in our communities are raising grandchildren for economic reasons. They are feeding their grandchildren on their grant money, which is sometimes more than the income their own parents are receiving.
In the event where both parents pass away simultaneously, or where one parent passes away and the other parent is not competent to take care of the children, grandparents will often step in to take the grandchildren into their care.
2. What does the law say in this regard?
South African Law does not make provision for grandparent’s rights over their grandchildren. However, Section 23 of the Children’s Act 38 of 2005 provides for third parties (in this case let us assume it is a grandparent) who have an interest in the care and well-being of a child, to apply to the court for contact with the child or care of the child.
Such third parties (grandparents in this regard) need to know the factors which a court will take into consideration when granting an application for contact or care of the child. The factors the court will take into consideration are as follows:
The best interests of the child:
Will it be in the child’s best interest to live with their grandparents on a permanent basis? For example; will they be safe? Will the grandparents be able to provide a better place of residence than an orphanage or foster home?
Is there a good relationship between the grandparent and the grandchildren. What defines “good” in this sense? For example; does the child trust you as their grandparent and could they confide in you?
The degree of commitment:
The degree of commitment a grandparent have shown towards the child is important to take into account. Have you attended their schooling events, been present for most of their milestones and been there for them emotionally and psychologically when they have needed support or a shoulder to lean on?
The extent of contribution:
The extent to which the grandparent has contributed towards expenses in connection with the birth and maintenance of the child should be considered. Have you provided towards the finances or even groceries when there hasn’t been anything to feed the child? Have you bought the child some clothes when their parents haven’t done so? Have you paid for the child’s schooling expenses when the parents have failed to do so?
The Court's consideration:
Any other fact that should, in the opinion of the court, be taken into account will also be reviewed.
3. What can you as a grandparent wanting rights to your grandchildren do?
As mentioned above, a grandparent who would like to obtain the care of their grandchildren, or even merely get contact with their grandchildren when parents are refusing such, can make an application to the court in terms of Section 23 of the Children’s Act 38 of 2005, requesting the court to grant them contact or care of the grandchildren.
This process may appear to be overwhelming. In event where you are still unsure of what needs to be done to gain care or contact with your grandchildren, feel free to contact our offices to schedule a consultation so that one of our attorneys or candidate attorneys can help you.
Also read about an unmarried father's rights.