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Divorce and the role of the grandparents with the minor child

It is very important for the grandparents to play an active role in the lives of the minor children. Very often a marriage fails because the grandparents take no interest in the minor children, and the married couple has no other support base. This leads to arguing amongst the married couple and very often the termination of the marriage.

In the present poor state of the South African economy, divorced couples are being forced more often to rely on their parents for financial assistance. I recently had a case where a divorce order was made that the one minor child would reside with the maternal grandparents in one area of the country, and the other child with the paternal grandparents in another part of the country. The divorced couple could simply not financially afford after the divorce to look after the children.

Section 23 of the Children’s Act 38 of 2005 provides that any person (including grandparents and other family members) having an interest in the care, wellbeing or development of a child may apply to the High Court or a Divorce Court or the Children’s Court, for an order granting to the Applicant, on such conditions as the Court may deem necessary –

a)contact with the child; or
b)care of the child.

When considering such an application, the Court must take into account –

a) the best interests of the child;
b) the relationship between the Applicant and the child and any other relevant person and the child;
c) the degree of commitment that the Applicant has shown towards the child;
d) the extent to which the Applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
e) any other factor that should, in the opinion of the Court, be taken into account.

Very often in a divorce the grandparents do not wish to play any role in assisting with the children. According to the family advocate the child has a right to get to know his grandparents, and the grandparents have a right to get to know their grandchild. The grandparents can in fact also be sued for maintenance if the biological parent cannot afford to financially support his/her children. I would very much urge grandparents in a divorce situation to play an active role in the lives of their grandchildren.

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