August 23, 2017

Can grandparents approach courts for contact with grandchildren?

We sometimes hear of cases where in the event of a divorce or a breakup, the parent with whom the minor child resides makes the decision that they no longer want the child to have anything to do with the family of the previous spouse or partner. This decision often results in the severing of connections with the family.

When a parent makes such a decision regarding the previous spouse or partner’s family, a question has to be raised as to what happens when the grandparents who previously enjoyed contact with their grandchildren are no longer allowed by that parent to see their grandkids.

When I was a candidate attorney, my principle took on such a matter. The parents of the child were involved in a long term relationship but never married each other. The child’s mother had no problem with the paternal grandparents having contact with the child. In fact, she encouraged it.

When the relationship broke down, the mother decided not to allow the paternal grandparents to continue to have any contact with the child.

The breakdown of the relationship had a toll on the father who simply did not have the strength to continue fighting the mother for contact. The grandparents, on the other hand, refused to let their grandchild be affected by the animosity between the parents and did not want their grandchild to think that they had given up on the child.

They approached the High Court, by way of application, in terms of Section 23 of the Children’s Act for an order granting the applicants, on such conditions as the court deemed necessary, for further contact with the child.

Upon the closing of pleadings, the court referred the matter to the Family Advocate’s offices. The Family Advocate was requested to launch an enquiry as to whether it would be in the child’s best interests for the grandparents to be granted further contact with the child.

The Family Advocate submitted their findings to the court and determined that it would be in the best interests of the child that the grandparents be allowed to continue to have contact with the child as they clearly had a loving relationship and were committed to ensuring that their relationship with the child continued.

The Family Advocates recommendation was one of the factors that the court took into consideration before handing down the order. The court granted the Applicant’s request to have further contact with the child as they had proven the relationship and degree of commitment between them and the child. Further that continued contact would be in the best interests of the child.

I found this matter to be very thought provoking as sometimes in Family Law a child may be used as bargaining chip to force the other party to give in to demands made by the other party. On these occasions, thought is not given as to how it will impact the child if they are no longer allowed to have contact with the family of the previous spouse or partner. Here the court looked past the animosity between the parents and considered what would be in the best interests of the child. It was in the best interests of the child to continue having contact with her paternal grandparents.

Author: Marisa De Aguiar

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