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December 02, 2017

Rights of grandparents to contact with grandchildren

Grandparents can seek court-ordered contact with their grandchildren.

Most grandparents actively participate in their grandchildren’s lives. Unfortunately, divorce or family dysfunction often cuts them off from their grandchildren. For example, the mother of a child born out of wedlock may, on a whim, refuse the paternal grandparents contact with her kids.

Any number of situations can lead to a grandparent petitioning a court for contact (visitation) rights – frayed relationships with their own children or their spouses, abuse or neglect of the grandchildren by their parents, or divorce. Fighting parents sometimes forget the special bond that has been created between the children and their grandparents.

The courts consider the best interests of the child
If such a special bond exists, the courts usually find that it would be in the children’s best interests for grandparents to continue seeing their grandchildren.
Our law requires judges to make their decisions about grandparents’ right to contact based both on the best interests of the child as well as the parents’ rights to fundamental care and custody of their children.

Money is a factor, but communication is key
It is difficult and expensive for grandparents to pursue visitation rights through the courts and mediation is more effective and cheaper. If parents and grandparents agree to meet with someone to facilitate a resolution of the disputes, most cases can be settled without expensive litigation and cost (both financial and emotional) for the family.
Reunification of the family can be a success for everyone, especially the children.

In LH and another v LBA (EL1426/20101, Eastern Cape High Court) the court had to decide what rights of access grandparents had to their grandchild.

The applicants sought an order allowing them access to their six-year-old grandson, born out of a relationship between their deceased son and the respondent. The respondent had initiated contact between the child and the applicants when the child was about six months old. The applicants then had regular contact with the child and he soon started to spend weekends with them. That arrangement continued until December 2008, after the child’s third birthday, when the respondent abruptly stopped it. Despite various attempts by the applicants to convince the respondent to allow them to see the child, they had not had any contact with him for the past three years.

That when considering such an application the Court is enjoined to consider, inter alia, the best interests of the child; the relationship between the applicant and the child, and any other relevant person and the child; and the degree of commitment that the applicant has shown towards the child. In terms of section 7 of the Children's Act 38 of 2005, the Court must, when determining what is in the best interests of the child, have regard to the need for the child to remain in the care of his or her parents, family or extended family; and to maintain a connection with his or her family, extended family, culture or tradition.
The Court was not convinced that the reasons proffered by the respondent for refusing to allow contact between the child and his biological paternal grandparents were valid. However, the Court was also of the view that the extent of the access sought by the applicants was too wide, and it would not be in the child’s best interests to allow contact on that basis. A more limited right of access was granted.