The Rights of the Extended Family to Minor Children.

In our previous article, we briefly discussed the recognition of paternity of the unmarried father.  

In this article, we shall discuss the rights of third parties (for example aunts, uncles, grandparents) being granted rights to the minor children of another.

If you have read our previous articles on the rights of care and contact to minor children we focused exclusively on the direct family, the mother, and the father. However, this does not exclude the rights of the extended family to minor children. By way of example, from case law, the parents of a minor child were involved in a brief relationship from the birth of the child. After they split up the father unfortunately passed away. However, during the relationship and before the death of the father the parents of the father, the minor child’s grandparents, were judgmental of how the mother was raising the child. This led to a strain on the relationship between the grandparents and the mother of the minor child. Due to this, on the death of the father, the mother refused to allow the grandparents any contact with the minor child despite previous contact and the grandparents assisting financially with the minor child.

We shall focus on the options available to the grandparents. In terms of Section 23 of the Children’s Act any person having an interest in the care, well-being or development of a child may apply to the High Court, a Divorce Court in divorce matters, or the Children's Court for an order granting to the interested person, on such conditions as the court may deem necessary-

   (a)   contact with the child; or

   (b)   care of the child.

It is important to note that this section applies to “any person having an interest in the care, well-being or development” of the minor child. This is therefore not restricted to grandparents but can be extended or any other person.

In granting an order the court will consider the best interest of the child, the relationship between the interested person and the child, and the degree of commitment that the interested person has shown towards the child. Furthermore, in determining the best interest of the child the Court will have regard to the need for the child to remain in the care of his or her parents or family and the child’s need to maintain a connection with his or her family, extended family, culture, or tradition.

Please note however an order granting the grandparents care or contact does not take away the parental rights and responsibilities another person (the mother in our example) has in respect of the child. In this instance, the grandparents and mother will be co-holders of these parental rights. For a further discussion on care and contact please refer to our previous articles on the subject.

In our next article, we shall discuss the assignment of guardianship and care over a minor child in the event of the death of the parents.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.