Grandparents’ rights and responsibilities
Intro: 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?
There can be no clearer illustration of the importance of grandparents in a child’s life than when grateful 27-year-old law graduate Njabula Ntombela led his Gogo onto the stage at the University of KwaZulu-Natal graduation ceremony in April this year.
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.
Keeping in contact
‘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.’
Ensuring the child is safe
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.’
Paying the bills
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.
What about if both parents die?
‘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, Moodley 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.’
Section 23 of the Children’s Act, No 38 or 2005
The Children’s Act provides that any person having an interest in the care, well being or development of a child may apply to an appropriate court for an order granting them the right to have contact with a child.
In considering applications, a court will take in account the following:
- The best interests of the child;
- 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;
- The extent to which the person making the application has contributed towards the expenses of the child’s birth and/or maintenance.
The question of the liability of the estate of a deceased grandparent to maintain a grandchild was discussed in a 2020 case in the Supreme Court of Appeal. See this article: