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Question
Posted by: Jennifer | 2011/08/08

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?

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Our expert says:
Expert ImageFamily law expert

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
E: bertus@divorceattorney.co.za

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 exmanication, 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.

5
Our users say:
Posted by: Anon | 2011/08/09

NO they can''t take you to court just to force you to let your son visit them alone. They can take you to court if you not looking after the kid proper i.e substance abuse or child abuse. I am sorry I sounded harsh but a lot of times the husbands parents must take a back stand and the wife''s parents get preference (my personal experience and working with a lady that is doing the same and working with another who''s daughter in law treat her like an alien). Try to get to a compromise if you don''t stay too far from the inlaws leave your son there for instance when you go shopping. I agree you can''t always spend time with the family you also have a life.

Reply to Anon
Posted by: Jennifer | 2011/08/08

So does that mean they can actually take us to court to make us leave him with them alone? Or will the court take into account the fact there there are other grandparents and family members as well as a mother and father?

Reply to Jennifer
Posted by: Jennifer | 2011/08/08

To Anon: let me clarify. they have babysat at least twice as many times as my mother has and they resentful and jealous if we ask my mother or my son''s godmother to babysit. The reason we only see them once every 3 weeks is because my parents are divorced so the little bittle of free time we have must be split between them, my mother and her husband, my father and his new wife, my brothers, and then sometimes alone time with just the 3 of us as a family. Is that so unjust??

Reply to Jennifer
Posted by: Anon | 2011/08/08

Grandparent''s rights as I understand only come into play when the father and mother are either divorced or if one of you has passed away and are keeping the children from seeing the other grandparents. But why don''t you let them babysit somethimes (or is it only your parents that is allowed to?) I am a grandmother and see my grandson every second weekend. It is an unjust you are doing to your kids and the grandparents not to see their grandparents on a more regular basis. If you have sons remember what you are doing to your inlaws now will come back to bite you. Karma is a b*#& h.

Reply to Anon
Posted by: family law expert | 2011/08/08

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
E: bertus@divorceattorney.co.za

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