I have recently in my practice received several queries as to the duty of grandparents to maintain and support their grandchild. There are situations where the father or the mother are genuinely unable to contribute financially to the support and maintenance of the child. This cannot be possibly the end of the road.
The overall rule is that there is a reciprocal duty of support between ascendants and descendants. The usual rule however operated that maintenance should be sought from the nearest relative, however, there is certainly a duty of support between grandparents and grandchild, when either a father or a mother are unable to maintain the child.
It is important to note that the duty to support the child will be extended to both the child’s maternal and paternal grandparents.
The position in South African law is still undetermined on whether the estate of the deceased grandparent may be liable to support a grandchild. At this stage there are two reported court cases which held two opposite views on the question.
The constitution of South Africa provides that every child has the right to family or parental care and has the right to basic nutrition, shelter, basic health care services and social services. The constitution further provides that the best interest of the child are of paramount importance in every matter concerning the child.
It is thus to be assumed that any decision dealing with the grandparents’ duty and responsibility to maintain a child, the best interest of the child criterion should determine the outcome of every such matter. Clearly the right to maintenance is in the best interest of every child.
Due to the current financial climate there is a dramatic increase in maintenance claims against grandparents.
It must however be borne in mind that the duty of grandparents will only arise if the parents are unable support the child properly. The Court will assess the financial position of all the parties with a duty to support before it makes a decision on the grandparents’ contribution towards the maintenance of the child.
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