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08 Aug 2011

IL''s want our son
My husband and I heard from family members that my in-laws are thinking about seeing a lawyer in order to get more time with our son. He is 2 now. We see them once every 3 weeks. They claim that they have certain rights as grandparents and that involves being entitled to alone visits without my husband and I and also seeing him more than once every 3 weeks. What are their rights? What are our rights? Where can we get some more information?
Answer 441 views
Family law expert
family law expert

01 Jan 0001

In so far as grandparents’ rights and responsibilities are concerned, ss 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship respectively, came into operation on 1 April 2010. Before that date grandparents had no inherent rights or responsibilities and it was only a high court, as upper guardian of a child, which could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of a child – an assessment that must be made having regard to the rights of the biological parents.

Grandparents very often receive the fallout from their chidren’s divorces – limited, restricted or no access at all to their often beloved grandchildren. This has all changed with the New Children’s Act whose main objectives are, amongst others to:

make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
strengthen and develop community structures which can assist in providing care and protection for children;
promote the preservation and strengthening of families;

And calls for

the prioritization of the best interest of the child,
the right to the child being able to participate in any matter concerning that child,
a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or High Court,

It also makes provision for any 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 .

The Court In making its order, will consider and take into account:

the best interests of the child;
the relationship between the applicant and the child
the degree of commitment that the applicant has shown towards the child
the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
any other fact that should, in the opinion of the court, be taken into account

Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
A:1st Floor, 56 Shortmarket Street, Cape Town, 8000
O: +27 (0) 21 422 1323
F: 086 572 8373
The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical examination, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.
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