What happens when conflicts occur in families and grandparents are denied contact with their grandchildren? Do they have an automatic right to continue their relationship with their grandchildren?

In short, no. However, in terms of sections 23 and 24 of The Children’s Act 38 of 2005, they can approach a court and request contact with their grandchild (or more extensive rights, as the case may be), and the court will make a decision it considers to be in the best interests of the child.

In a 2004 case, the mother of a young boy had died of cancer and the father had entered into a relationship with another woman, who the little boy considered to be his mother. The relationship between the father of the child and his late-wife’s parents had deteriorated and he had not allowed them to have regular contact with the child. The grandparents brought an application for contact with their grandchild.

In reaching its decision, the court confirmed that South African law only gives automatic rights to legitimate parents, and added that courts have always been reluctant to interfere with parental authority, except in special circumstances or where an intervention in a family could affect the welfare and interests of a child. In this instance, the grandparents were denied access to the child on the basis that it would not be in the best interests of the child because of the conflict within the family.

In a more recent decision, in 2008, a Mpumalanga couple applied to become co-caregivers of their grandchild. The father of the child, their son, had been killed in an accident. But the mother of the child opposed the application. The court reaffirmed that grandparents do not have any automatic rights with their grandchild, but it held that it would be in the best interests of the child to have her grandparents visit her at least once a week. In this case, the court didn’t grant the grandparents the rights and responsibilities of a caregiver, but it did consider it to be in the best interests of the child that she have contact with her paternal grandparents.

In a recent 2012 decision in the Eastern Cape, the father of a child was killed in a car accident shortly before her son was born. Following her remarriage, her relationship with the paternal grandparents of her child soured and all contact ended. The grandparents then brought an application for contact with the child. Interestingly, the judge in this instance said that it is usually in a child’s best interests to maintain a close relationship with their grandparents. However, the judge granted the application only on a circumscribed basis to avoid interfering with the parental rights and responsibilities of the child’s mother and her second husband.

The message the courts are sending is that parties other than parents who want to play a significant role in a child’s life must represent a positive influence, not create conflict and dissension in their environment and, above all, respect the parental rights and responsibilities of the child’s parent or parents.

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