The Rights of the Extended Family to Minor Children.

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.

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.

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.

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.

Related Practice Areas: Father's Rights

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.