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.
Summary
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.
Held
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.
