Denied access to your loved one's kids? 'Court applications can be of last resort' - legal experts advise

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  • Earlier this year, the late Mshoza's sister reportedly claimed that the singer's ex-husband denied her family access to the children.
  • A few months later, Sifiso Ncwane's family alleges they are facing the same problem.
  • Legal experts weigh in on what the family has should they be denied access to a loved one's children.

When your loved one passes away, leaving children behind, what rights does the family have should they want to build a relationship with the surviving children? This is the predicament many families find themselves in, and of late, the loved ones of public figures who have since passed away. 

Tabloid newspaper, Sunday World, reported that the family members of late musician Mshoza, whose real name was Nomasonto Maswanganyi, were being denied access to her children by their father Jacob Mnisi, who is also the late star’s ex-husband.

The late kwaito star’s family claimed that Mshoza’s ex-husband started denying them access to the children shortly after their mother’s passing. Jacob is also quoted by the newspaper saying he is doing so because the family is poisoning the kids against him.

City Press also reports that late gospel singer Sfiso Ncwane's family are in the same predicament. According to the newspaper, the Ncwanes are pleading with Sfiso's wife, reality tv star Ayanda Ncwane, to let them see the children. They say they haven't seen the children since Sfiso funeral six years ago.

"We wish to see them but we have protection orders against us and there is nothing much we can do", says Sbahle Ncwane, sister to the late gospel star.

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Cases such as these are not rare in South Africa. Speaking to TRUELOVE, legal experts Thenjiwe Mpanza of T.Mpanza Attorneys and Joseph Sithole of JVS Attorneys Inc weigh in on what the law says and what one could do should they find themselves in a position where they are being denied access to their late family member’s child(ren). 

1. If the parents were married when one of them passes away, what rights do the family of the deceased have in accessing the children?

Naturally, both married parents have parental responsibilities and rights in respect of their minor children by virtue of their marriage and a rebuttable presumption that the child conceived of a married couple is considered a legitimate child and that of the married couple. If one of them passes away, the surviving parent remains the sole holder of parental responsibilities and rights.

The relatives or family of the deceased parents will remain interested parties with whom the child must exercise contact but it is not a right. It only remains an interest unless the court, in terms of section 23 of the Children’s Act 38 of 2005, has assigned either of them parental responsibilities and rights in respect of that particular child. In essence, they cannot claim to have a right to access the children unless there is a court order conferring parental responsibilities and rights or right of contact on them.

2. Does this work differently if the parents were divorced or separated?

When parents are divorced or separated, they remain co-holders of parental rights and responsibilities and each parent can elect who the child must have contact with and as long as it is in the best interests of that particular child.

3. Does the remaining parent have the right to keep the children away from the family of the deceased?

As the sole holder of the parental responsibilities and rights, he may do so but his conduct must show that it is in the best interests of the children in terms of section 7 of the Children’s Act 38 of 2005 should any interested party bring a High Court application to exercise contact and care in terms of section 23 of the Act. In this case relatives of the deceased would be deemed as interested persons.

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4. What legal recourse does the family have should they find themselves being kept away from their late loved one’s children?

As mentioned above, section 23 (1) of the Children’s Act 38 of 2005 provides that any interested person having an interest in the care, well-being or development of the child might apply to the High Court, a divorce court in divorce matters or Children’s Court for an order granting to the applicant, on such conditions which the court may deem necessary, contact with the child or care of the child. Any interested party may bring this application for an order permitting them to exercise contact with the child and the court hearing the application will consider the following factors;

1.1. The best interests of the child;

1.2. The relationship between the applicant and the child, and any other relevant person and the child;

1.3. The degree of commitment that the applicant has shown towards the child;

1.4. The extent to which the applicant has contributed to the expenses in connection with the birth and maintenance of the child; and

1.5. Any other factor that should, in the opinion of the court, be taken into account.

5. If such a family doesn’t find success in court processes, are the other avenues they can explore? For example, are things like mediation an option for the surviving spouse and their in-laws – and how should they go about this?

Litigation (court applications) can be a matter of last resort as litigation is likely to cause hostility and strife between the families.

It is always better for the two families to try and come together to mediate the matter between themselves to see if they can reach a common ground. If this fails, the families can appoint a professional like a family law legal practitioner, social worker or psychologist who can assist in mediating the matter between the families - all this done, however, with keeping with the best interest of the child. This process can be more efficient and cost-effective.

There are a number of provincial bodies that oversee family mediation in South Africa. These include  SAAM ( South African Association of Mediators), FAMAC (Family Mediators’ Association of the Western Cape) , FAMSA (Family and marriage society of South Africa) and the Social Justice Foundation.

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