What happens when a grandparent becomes much more than a grandparent?
In many South African families, grandparents play a significant role in raising their grandchildren. They may provide childcare, financial and emotional support, attend medical appointments and become responsible for the child’s day-to-day needs.
Sometimes, however, a grandparent effectively becomes the child’s primary caregiver.
This may happen because the parents are unable to care for the child, the grandparent becomes a foster-care placement, or a parent nominates the grandparent to care for the child in their will.
But does this automatically give the grandparent parental rights?
Not necessarily.
Being a grandparent does not automatically give parental rights
A biological relationship with a child does not, by itself, give a grandparent the same parental responsibilities and rights as a parent.
The Children’s Act 38 of 2005 nevertheless recognises that people other than parents can have a significant role in a child’s life.
In particular, sections 23 and 24 provide mechanisms through which a person with an interest in a child’s care, well-being or development may approach the court for appropriate rights.
Care and contact
Section 23 allows a person with an interest in a child’s care, well-being or development to apply for an order relating to care and/ or contact.
This can be particularly relevant where a grandparent has developed a substantial relationship with the child or has become the child’s primary caregiver.
For example, a grandmother who has raised a child for several years and is responsible for the child’s schooling, medical care and everyday needs may have a very different legal position from a grandparent who simply wants to spend more time with a grandchild.
What if the grandparent is a foster-care placement?
A grandparent may also become a child’s foster-care placement.
Foster care is not the same as adoption and does not automatically make the grandparent the child’s legal parent or give them every parental responsibility and right.
However, the grandparent may become the person providing the child’s home, arranging schooling and medical care and making many day-to-day decisions.
Where broader or more permanent legal authority is required, it may be appropriate to consider whether an application under sections 23 or 24 is necessary.
Guardianship
Section 24 provides a mechanism for a person with an interest in the child’s care, well-being and development to apply for guardianship.
Guardianship is more extensive than ordinary contact or day-to-day care. It can provide legal authority in relation to significant decisions concerning a child.
This may become particularly important where a grandparent has effectively become the child’s primary caregiver but needs greater legal certainty when dealing with matters such as education, medical treatment, travel or legal proceedings.
What if the parent names the grandparent in their will?
A parent may nominate a grandparent to care for their children if the parent dies.
This is an important expression of the parent’s wishes, but a nomination in a will should not automatically be confused with the transfer of parental responsibilities and rights.
The child’s existing legal position, any surviving parent or guardian, the terms of the will and the Children’s Act must all be considered.
Ultimately, the best interests of the child remain paramount.
The child’s best interests come first
These cases are not simply about determining which adult should have the child.
The court considers the child’s circumstances, relationships, needs, stability and well-being.
A grandparent cannot simply say, “I have raised this child, so I should have the same rights as the parent.”
Equally, being the biological parent does not necessarily mean that the role of another person who has become central to the child’s life can simply be ignored.
Each case depends on its particular circumstances.
When should a grandparent seek legal advice?
If a grandparent has effectively become a child’s parental figure, it is worth considering whether their current legal status adequately reflects their actual role.
Important questions include:
Is the grandparent providing primary care or simply exercising contact?
Is the child formally in foster care?
Does the grandparent have sufficient authority to make important decisions?
Is there an existing guardian?
Has a parent nominated the grandparent in a will?
What happens if a parent dies or disputes the grandparent’s role?
The reality is that families do not always fit the traditional model of two biological parents raising a child. Grandparents may step in because of illness, substance abuse, financial difficulties, family breakdown, death, abandonment or other circumstances.
Where a grandparent has stepped into the shoes of a parent, understanding their legal position can help provide greater certainty and, most importantly, protect the best interests of the child.