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I am concerned about my niece’s wellbeing. Is it possible for me to obtain rights of custody and guardianship over her? The parents are still alive but divorced.

Custody over neice and nephew

I am concerned about my niece’s wellbeing. Is it possible for me to obtain rights of custody and guardianship over her? The parents are still alive but divorced.

We often receive enquiries from family members of minor children wanting to know whether they can obtain rights of custody or guardianship over a minor child. The client could be a grandmother, an aunt, or in some instances, a former step-parent. Let us take you through a scenario where an aunt wishes to obtain sole custody and guardianship over a minor child. Should you be an interested party wishing to obtain parental responsibilities and rights over a minor child; feel free to contact us for a legal advice consultation.

The scenario: The minor child is being primarily cared for by the paternal aunt

The parents of a minor child, age 16, are married and living together. The minor child, who is in grade 10, frequents the home of her paternal aunt. The parents live very busy lives, and often have to travel overseas on separate business trips for extended periods. The minor child sometimes doesn’t see her parents for weeks on end. Nonetheless, she is well cared for by her aunt, during the week, and on most weekends, and whilst her parents are away on business. Basically, you can say the aunt is her primary caregiver, since birth.

The aunt has her own family, however, her husband passed away before the minor child was born. She has two adult children of her own living with her. They are both at university. The minor child is very fond of them and sees them as her older siblings. She even tells her friends they are her siblings.

The aunt collects the minor child from school, takes her to her extramural activities and assists her with her homework every day. She even used to bathe her at her home and makes sure she has supper before one of her parents or the driver collects her the evening.

A few weeks ago, the parents separated and the father moved to a different province due to work. The mother on the other hand, who has no time for the minor child, wants her to attend boarding school. This is a different school. Her current school is close to where the aunt resides. The mother now does not want the minor child to have any contact with the aunt or any of her husband’s family. Now let us see what the law has to say about this scenario.

Do aunts and uncles have parental rights and responsibilities over their nieces and nephews?

If you are not the biological parents of a minor child, you do not have parental responsibilities and rights over him or her. In other words, you do not have a right to have contact with the minor child. If the parents do not want the aunt or uncle to visit the child; then they have to adhere to it. The same applies to decisions regarding the minor child. It is the parents who must make decisions on the minor child’s behalf. In the scenario above, the aunt can’t demand that she wants the minor child to visit her every day as she did in the past. She is welcome to ask, but if the parents refuse, that would be it. Now let us look at the law that could assist the aunt.

Does the law assist interested parties in obtaining parental responsibilities and rights?

Obviously, it won’t be in the minor child’s best interests if she is placed in a boarding school and no longer have contact with the aunt and her cousins. Luckily, the Children’s Act 38 of 2005 comes to her assistance. It makes it possible for the assignment of contact and care to interested persons by order of the court. Furthermore, the Children’s Act makes it possible for a person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship of the child to the applicant. In this case, it would be the aunt referred to above. Have a look at the relevant sections of the Children’s Act next. You may skip the reading of the relevant section of the Children’s Act and read on further below.

23     Assignment of contact and care to interested person by order of court

23 Assignment of contact and care to interested person by order of court (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary-

(a) contact with the child; or

(b) care of the child. (2) When considering an application contemplated in subsection (1), the court must take into account-

(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child;

(c) the degree of commitment that the applicant has shown towards the child;

(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and

(e) any other fact that should, in the opinion of the court, be taken into account.

(3) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court-

(a) must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and

(b) may suspend the first-mentioned application on any conditions it may determine.

(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

 

24 Assignment of guardianship by order of court

(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

(2) When considering an application contemplated in subsection (1), the court must take into account-

(a) the best interests of the child;

(b) the relationship between the applicant and the child, and any other relevant person and the child; and

(c) any other fact that should, in the opinion of the court, be taken into account.

(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

 

How does the law assist the aunt in the scenario above?

We would advise the aunt to make use of section 23 of the Children’s Act for the assignment of contact and care rights to her. The Application would be made to the relevant court. If she is successful, she will then still be able to have the minor child at her home after school and assist her. As the minor child is almost an adult, and her mother is around, we do not think it is necessary for her to be assigned rights of guardianship over the minor child.

 

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About the Author

Advocate South Africa

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Call 0211110090
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11 thoughts on “I am concerned about my niece’s wellbeing. Is it possible for me to obtain rights of custody and guardianship over her? The parents are still alive but divorced.

  1. Good day

    I trust you are able to assist. I have two nephews, age 10 and 9, and a niece 3years old. The parents have kept the boys out of school for the last 4 years. I have contacted Child Welfare but they seem to fail me. Whenever we address the issue with the parents, they forbid the children to see or speak to myself or my mother. My mother lives right next door to them. We have endured mental, physical and emotional abuse towards the children and have contacted the police and child welfare on numerous occasions. Nothing happens. A case worker was assigned a year ago to follow up to ensure the children are placed back in school but nothing. We are pleading for guidance and assistance as to what we can do because the children wants to attend school so much but the parents have just decided that they children stay at home with no education. They are also both unemployed and collect SASSA money monthly. Please help.

  2. Good day. Baby abandoned in my care by mother at 2 months old. Over a period of 10 months she visited baby 3 times for less than 1 hour each time. No financial contribution of any kind came drom her. It took me.mo the to get clinic card to do immunization ls, and when 8 eventually got it he had not had any from birth to 2 months in her care. Nov 1 week before his 1st birthday Sue arrived and took him away. We have been afforded zero contact and I am beside myself. Please advise as to what I can do legally to access baby and with assistance get him.back permanently. My contact no 0720310020

  3. Good day,

    My sister and I have always had a messy relationship, if she has any issues in her life she takes it out on me. We recently got into an argument and she is now using my nephew as a weapon and is not allowing me to see him. He is almost 2, we had a very special little bond. Do I, as his Aunt, have any rights to visitation?

  4. hi. what can an aunt do if her niece says that she is being harasser by her moms boyfriend. He does it when the mom is drunk and she is someone who always covers up for him.

  5. Good Day
    I recently started working here in Thailand. I am married and in SA I stay with my wife and stepson. The plan was for all of us to come and stay here in Thailand. We applied and received a court order granting my wife parental rights and consent to travel with my stepson from the father. On my arrival here I discovered that as my wife and stepson are my dependents while working here, they have to apply for a Dependent visa. For my wife, there is no issue because there is a marriage certificate. The problem is with my stepson. He is not adopted because his father is still alive and very much part of his life. What alternative do I have to an adoption that can give consent or an order from the court to take care of the child while I am still here? My family cannot come now until I get such a document.

  6. I have a 4yr old niece and 2yr old twin nephews. Their mother has the kids from my brother in law. They struggle financially a lot and don’t live in the best environment. The parents relationship is extremely toxic. Always fights. Always ugliness. Also calling cops on each other. They don’t know how to be civil. We want to be able to visit or see the kids. We do not have any relationship with the mother whom the kids live with due to all the drama and we don’t want to get involved. But we do love those kids so much!!! We had a relationship with my niece at one point . What can we do?

  7. My children are 5 and the girl 3.. They go to their dad every 2nd weekend and sometimes he doesn’t want to give them back to me if j don’t want them to sleep over… Is there anything I can do against him if he doesn’t want to give them back on the arranged date? And can I keep them away if he doesn’t to settle for a date to send them back? (8f he wants to keep them longer )

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