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:- The Law Regarding Children – The Children’s Act 38 of 2005
- 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?
- How do I get full custody over my child?
- Parental Child Abuse in Custody Cases
- Relocate with minor child. Parent Refusing Consent for a Passport
- Father being refused contact to his child! What are his rights as a Father?
- Father’s Parental Responsibilities and Rights to his Child
- Urgent Access to your Children without a Lawyer
- Parenting Plans and the Law
- What happens in a custody dispute where one parent is mentally ill?
- 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. [caption id="attachment_5104" align="alignleft" width="208"]
Make an Appointment with us Online[/caption] [caption id="attachment_5103" align="alignleft" width="203"]
View our Family Law Services[/caption]
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.
Have a family Law appointment with us
We have an
online appointments system which enables you to save valuable time and cut straight to the chase. Therefore, there is no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option).
You may set up telephonic or video consultation should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are are a physical, online, set-up and ready to meet with you. Make your
appointment online for a consultation today. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit
Private Legal. [caption id="attachment_5144" align="alignleft" width="183"]
Advocate Muhammad Abduroaf – Western Cape High Court – Cape Town[/caption] Or click here for the details of
Cape Town Advocate,
Muhammad Abduroaf or this
advocate link to learn more. Visit our
child custody and maintenance site for additional information.
Post a family law question on:- Ante-nuptial Contracts
- Changing your Matrimonial Property Regime
- Child Maintenance / Support
- Child Custody / Visitation / Access
[06/09] SHARED 3 TIMES Happy Secretary and Support Staff Day! We celebrate the Amazing Secretary’s and Support Staff Team who put in so much effort and dedication to contributing to making the Adriaans Brand World Class! #adriaansattorneys #secretarysday #supportstaff 
[05/09] SHARED 0 TIMES *ADRIAANS LEGAL LYNX* Check out this article by our very own @lauren_slamet sharing on -Success from a woman in Law’s perspective. Click on the link below to read the article: https://adriaansattorneys.com/success-from-a-woman-in-laws-perspective/ #adriaansattorneys #womaninlaw #adriaanslegallynx 
[04/09] SHARED 2 TIMES Remember, legal preparedness is more than a safeguard; it’s a strategic asset that empowers entrepreneurs to confidently drive their business forward in a complex legal environment. Contact Adrians for all your business needs. #adriaansattorneys #legaltips 
[10/09] SHARED 1 TIME ✨ Join us this evening for the virtual launch of an exciting new legal publication! Dive deep into discussions on African legal developments and don’t miss the chance to engage with experts in the field. ⏰ Event starts at 4pm SAT Register now and be part of this important conversation: https://zoom.us/webinar/register/WN_hY0RwtS5QQeRWu1GTm1hC… 
[04/09] SHARED 0 TIMES Accelerating Industrial Development in Africa! Africa is moving towards greater economic integration and industrial growth through initiatives like the Accelerated Industrial Development for Africa (AIDA) and the African Continental Free Trade Area (AfCFTA). These frameworks are key to boosting intra-African trade, creating jobs, and driving s… 
[03/09] SHARED 0 TIMES Did you know that the African Commission on Human and Peoples’ Rights (ACHPR) adopted guidelines to protect people from enforced disappearances? This powerful document is available for free on our platform at AfricanLII.org Here’s why it matters: It helps define and combat a serious human rights violation It provides a detailed legal framework… 
[04/09] SHARED 0 TIMES DKVG Inc will be attending the upcoming Winelands Bridal Fair (7-8 Sept 2024) Visit us and get your Antenuptial Contract & Will drafted by us! Learn more: https://buff.ly/3QznRqC 
[03/09] SHARED 0 TIMES National Wills Week! Let your will drafted, for Free, by our experienced attorneys 16 – 20 September 2024 Click Here: https://buff.ly/3QznRqC #NationalWillsWeek #WillsWeek #SeptmeberWillsWeek2024 #DKVGInc 
[29/08] SHARED 2 TIMES If You Wait to Long You Might Not Be Allowed to Use The Mark That Forms Part of Your New Brand Choosing a brand name is an exciting step for any business or entrepreneur. It’s the name that will represent your hard work and creativity to the world. But before you get too attached to that perfect name as well as spend valuable time and money on res… 
[09/09] SHARED 0 TIMES Make Mondays Great ___________________________ #MotivationMonday #Motivation #BusinessInspiration #MotivationalQuotes #InspirationalQuotes #StartYourWeekWithPositivity #PositiveVibes #EnglandSlabbert #CapeTown #Lawyers #CapeTownLaw #Law #LegalServices #LawFirm #Attorneys #Johannesburg #JohannesburgLaw 
[29/08] SHARED 1 TIME Love where you work ___________________________ #LoveWhereYouWork #EnglandSlabbert #Johannesburg #Lawyers #JohannesburgLaw #Law #LegalServices #LawFirm #Attorneys #ViewsOnEveryTurn 
[13/09] SHARED 0 TIMES Happy Friday! Contact us for all your legal needs. #FridayFun #Lamejoke #Fridayfeeling #Fridays #EraLaw #Law #Lawfirm #LegalAdvice #BestAdvice #LegalExpertise #LegalTips #LegalHelp #committedlawyers #passionateaboutlaw #passionateaboutourclients #eralawfirm #capetownlaw #westerncapelaw 
[12/09] SHARED 0 TIMES Excerpts From The Constitution: Arrested, Detained and Accused Persons (Part 3). Every accused person has a right to a fair trial, which includes the right: (a) To be informed of the charge with sufficient detail to answer it. (b) To have adequate time and facilities to prepare a defense. (c) To a public trial before an ordinary court. (d) To ha… 
[11/09] SHARED 0 TIMES ️ Protect Your Property Rights with the Best Legal Team ️ Are you facing disputes over property ownership, boundary issues, or landlord-tenant conflicts? Don’t let legal battles jeopardise what’s rightfully yours! At Era Law Firm, we specialise in Property Law Litigation — fighting to safeguard your assets and secure justice for your property… 
[03/09] SHARED 7 TIMES Contact GCA Inc for your legal needs! [email protected] / +27 84 714 1783 #lawfirm #lawyer #gcainc 
[22/08] SHARED 6 TIMES Please contact us at [email protected] to discuss your legal needs. #lawyer #lawfirm #contracts #attorney #legal #gcainc 
[07/08] SHARED 6 TIMES When you prepare and register a Trust, you can structure the Trust so that it can protect beneficiaries from themselves. For example, should a beneficiary be a minor or financially irresponsible, the Trust can be drawn up so that the funds are distributed gradually or for a specific purpose to such beneficiary. If you are interested in learning mo… 
[30/08] SHARED 0 TIMES Navigate property matters smoothly. Our experienced team offers practical advice and in-depth knowledge of South African property law to protect your interests, whether you’re buying, selling, or facing a dispute. We prioritise clear communication and aim for successful outcomes. Contact us: https://www.mpw.co.za/OurExpertise/ExpertiseDetail.aspx?S… 
[28/08] SHARED 0 TIMES Facing complex legal issues? Seeking proactive strategies? Our team understands the complexities of South African law and is here to help you navigate your situation with clarity and confidence. We are committed to finding the best possible outcome for your specific needs. Contact MP|W: https://www.mpw.co.za/?utm_source=social+media&utm_medium=orga… 
[23/08] SHARED 0 TIMES MP|W isn’t your typical law firm. We combine legal expertise with a personal approach to understand your unique situation. Our team listens attentively, ensuring clear communication and practical solutions that work for you. Ready to experience the difference? Contact us today for a consultation and see how we can guide you with expert legal advice… 
[06/09] SHARED 0 TIMES I want to relocate from South Africa to Spain with my minor child. The other parent does not want my child to relocate to Spain. What can I do?… I want to relocate from South Africa to Spain with my minor child. The other parent does not want my child to relocate to Spain. What can I do? 
[06/09] SHARED 0 TIMES I have a maintenance order for my children – but the father of my children does not pay. Is this allowed? What can I do? Non-compliance with Maintenance Orders — Civil and Criminal Remedies Many mothers (and sometimes fathers) go through great lengths to obtain a maintenance order against the other parent. This the mother found necessary as the fat… 
[05/09] SHARED 0 TIMES Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Constantia Children’s Court Family law legal matters can be very stressful. This is so whether you live in Constantia or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are… 
[25/09] SHARED 2 TIMES Enlisting the services of a skilled and experienced attorney is essential to ensuring that your interests are properly represented. STBB’s knowledgeable family law specialists are dedicated to assisting clients with navigating the complexities and sensitivities of legal problems arising within family and domestic relationships. To that end, we… 
[23/09] SHARED 9 TIMES Trusts are valuable financial and estate planning tools that help safeguard and grow wealth for the benefit of your loved ones – both during your lifetime and long after you’re gone. Given this important function, there are various types of trusts, including testamentary trusts and inter vivos trusts. A testamentary trust is created in terms of an… 
[20/09] SHARED 1 TIME In a travel-focused episode, Refqah Ho-Yee considers the impact of settling abroad, marrying a foreigner abroad, or persuading your foreign spouse to relocate to South Africa on estate planning requirements. Follow the link to listen to the full episode: https://iono.fm/e/1484370 #STBB #TheBigSmallFirm #estateplanning #estates #law #lawfirm #podc… 
[23/09] SHARED 0 TIMES Pranary’s Elevate Your Enterprise Summit 2024 Nicolene Schoeman-Louw, Managing Director of SchoemanLaw Inc. will be joining on stage as a speaker at the event. #SchoemanLawInc #smallbusinesssupportingsmallbusiness #legalbusinesssupport Cape Town will become a hotspot for innovation on October 16th and 17th, 2024, as it hosts the Elevate Your En… 
[23/09] SHARED 0 TIMES Heritage is the foundation of our identity; let us honour the past, celebrate the present, and build a future rooted in unity and pride. Thank you, Robyn Shepherd, for this week’s #mondaymotivation Robyn’s areas of expertise: ⚖ Family Law ⚖ Civil Litigation ⚖ Employment Law ⚖ Alternative Dispute Resolution ⚖ Contract Drafting ⚖ Property Law ⚖ An… 
[20/09] SHARED 0 TIMES Expand your Reach with our Dedicated Correspondent Service Looking to enhance your legal practice’s efficiency and reach in Cape Town and the Winelands? Partner with SchoemanLaw Inc. and take advantage of our comprehensive correspondent assistance. As a trusted legal partner, we provide seamless support in various legal matters, ensuring your cas… 