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Recent Legal Articles

Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?

ByOur Lawyer

Our only daughter is deceased. Can the Court give us sole custody and guardianship over our only grandchild, even if the father is still alive? What does the law say?

Grandparent, Grandchildren, and the Law – Child Custody, Care and Guardianship

The caregiving of minor children is in principle, supposed to be the joint responsibility of both parents. It took two parents to bring the child into this world. However, equal sharing of the responsibilities is not always the case. Often, in a case of separation, responsibilities changes. The child lives primarily with one parent, and the other parent has reasonable contact, or sometimes less or none. In the scenario of reasonable contact, the child is still cared for by both parents, but not equally. Read on more to find out what does Advocate Muhammad Abduroaf say about this topic.

Equal caregiving of children

There are however cases where caregiving is shared equally – where the child lives for one week with the mother and the other with the father. But that becomes sometimes impractical when the parents live far from each other, and have different work schedules etc. If the child attends school closer to one parent’s home, he would have to wake up at different times each week, have different parents assist them with school work etc. However, if it can work, and is in the best interests of the child, it should be implemented.

Rights to third parties to minor children

But what happens when a third party, being a relative or otherwise, wants to have contact, care and guardianship over a minor child while one or both the parents are alive? We are not dealing with the issue of adoption – which is a completely different topic – but with the issue of whether other persons can also have rights to contact to a child. It is, however, safe to say that the parents’ rights of contact, custody and so on, would be limited to a certain extent.

Assignment of rights to grandparents

For the purposes of this article, you may ask yourself: Can grandparents be the caregivers of the child? Is this possible and does the law accommodate for a situation where non-biological parents have such rights?

You will see below that the law does indeed allow for such a situation. Considering the title of this legal article, we will explore the scenario where maternal grandparents want to have primary care of a minor child after their daughter passed on in a case of a living father. The law mentioned can be applied to any scenario in which third parties are interested in having such rights assigned to the minor child.

You may find the following articles interesting:

  1. The Law Regarding Children – The Children’s Act 38 of 2005
  2. Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do?
  3. How do I get full custody over my child?
  4. Parental Child Abuse in Custody Cases
  5. Relocate with minor child. Parent Refusing Consent for a Passport
  6. Father being refused contact to his child! What are his rights as a Father?
  7. Father’s Parental Responsibilities and Rights to his Child
  8. Urgent Access to your Children without a Lawyer
  9. Parenting Plans and the Law
  10. What happens in a custody dispute where one parent is mentally ill?
  11. How to win your child custody and access court case – Tips and Tricks

What law do we look at?

Well, first of all, we should always look at what is stated in the Constitution, Act 108 of 1996. The Constitution is supreme law in South Africa. What it says, is that a child’s best interests are of paramount importance in all matters concerning a child. This is something we already know. Then we look at legislation subordinate to the Constitution. In this case, we look at the Children’s Act 38 of 2005. This is where we are going to get our answers from.

The Children’s Act 38 of 2005

The Children’s Act is the main piece of legislation dealing with matters concerning children. Section 2 of the Children’s Act deals with its objective. Reading it would give you some type of understanding regarding the Act. It is quoted as follows:

“2     Objects of Act 

 The objects of this Act are- 

 (a) to promote the preservation and strengthening of families; 

 (b) to give effect to the following constitutional rights of children, namely- 

          (i)     family care or parental care or appropriate alternative care when removed from the family environment; 

          (ii)     social services; 

          (iii)     protection from maltreatment, neglect, abuse or degradation; and 

          (iv)     that the best interests of a child are of paramount importance in every matter concerning the child; 

 (c) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; 

 (d) to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; 

 (e) to strengthen and develop community structures which can assist in providing care and protection for children; 

(f) to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; 

(g) to provide care and protection to children who are in need of care and protection; 

(h) to recognise the special needs that children with disabilities may have; and 

(i) generally, to promote the protection, development and well-being of children.” 

As you can see, the Children’s Act’s object is very extensive, focused solely in the interests of the child. Now let us look at what does it say about the best interests of a child.

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Best interests of a child

So what is meant by: “the child’s best interests”? Let’s go one step further and by detecting this in our legislation. As mentioned earlier, our Constitution also refers to it. Section 9 of the Children’s Act 38 of 2005 states the following:

“9     Best interests of child paramount 

In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.” 

Now, there you have it. The law does not look at the interests of the parents or third parties. The law looks at what is best for the child under the circumstances. Now we need to move on to the question this legal article addresses: What does the law say about grandparents or third parties obtaining rights of care, contact and guardianship over a child not born from them? For this, we refer to the Children’s Act. Here it refers to the latter persons as interested persons.

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

As third parties do not have any inherent parental responsibilities and rights as parents do; rights are assigned by a Court. Now, what does the law say about assigning rights of contact and care to interested third parties? Here section 23 of the Children’s Act is of assistance. Section 23 is quoted as follows”

“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.” 

So, there we have it. In short, if you formed part of the child’s life and have an interest in having rights of care and contact – the court may afford you such rights. Therefore, should you divorce the mother of your step child, you may also claim rights of contact to your step-child in the divorce court. Now, what are the potential for rights of guardianship being assigned to third parties and grandparents over minor children? And what is the law state? Here too, the Children’s Act comes to our assistance.

Assignment of guardianship by order of the court

Now that you know that our maternal grandparents referred to in the scenario above or any other interested persons, may be assigned rights of care and contact. Now, let’s move on to the aspect of guardianship. Guardianship would refer to the consent for the application of a passport, leaving the Republic, alienating immovable property and so on in relation to a minor child. In this regard, section 24 of the Children’s Act would be of assistance. This section is quoted as follows:

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.”

The provisions are self-explanatory. What is interesting to note is that only the High Court can assign rights of guardianship over a minor child. The potential problem in that regard is that it can become inaccessible as not all persons can afford to take matters to the High Court.

Looking at section 24 (4) of the Children’s Act, in our scenario above where the grandparents want guardianship, but the father is still alive, they must submit very good reasons as to why the father if he is a guardian, is not suitable to have guardianship in respect of the child. One such reason may be that he is and never was involved in the child’s life.

Final words of maternal grandparents obtaining rights over their grandchildren

As can be seen above, it is possible for a non-parent to be assigned rights of care, contact and guardianship over a minor child. What the Court looks at is what interest you have, and whether your application is in the child’s best interest. Now let us look at what role the High Court play in children matters before we conclude.

The High Court in Children Matters

The High Court is the upper guardian of all minor children within its jurisdiction. Therefore, should a matter concerning a child be brought before it, it would be able to adjudicate the matter and make an order as to what is in the minor child’s best interests. Therefore, seeing that guardianship is such an important aspect in a minor child’s life, one can see why the legislature only afforded the High Court with the power to assign rights of guardianship to interested parties.

What to do if you want to be assigned with rights of care, contact and guardianship to a minor child

If you are an interested party in a minor child’s life and wish to be assigned rights of care, contact and guardianship; it is advised that you speak to a lawyer who is knowledgeable on sections 23 and 24 of the Children’s Act and familiar with Court Applications regarding minor children.

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