What are their legal rights?
The nature of families is constantly evolving, with more fluid attitudes about remarriage, same-sex marriage, life partnerships, and blended families prevalent today than in the past. The law is working hard to keep up. What happens when someone who is not a biological parent develops a deep bond with a child and seeks the legal right to continue that relationship, following the termination of a partnership with the child’s biological parent? A recent court case provides some important answers, shedding light on the rights of non-biological guardians and offering a new perspective on what it means to be a parent in the eyes of the law. This case offers hope for anyone who has formed a significant bond with a child and wants to continue being a part of their life, even if they don’t share a biological connection.
Case study: a complex family situation
The case concerns a man named R.C. and a woman named H.S.C., who had been in a relationship. When they met, H.S.C. was pregnant, although she didn’t immediately disclose this to R.C. The child, referred to as B., was born in December 2017. R.C. quickly took on a loving, parental role in B.’s life, despite not being the child’s biological father. R.C. and H.S.C. lived together as a family with B. and H.S.C.’s older son from a previous relationship.
For several years, R.C. played an active role in raising B., and their relationship developed. However, when the relationship between H.S.C. and R.C. faltered and eventually ended, H.S.C. denied R.C. contact with B. This sudden and unilateral decision prompted R.C. to seek legal advice, as he felt the relationship he had built with B. gave him the right to maintain contact and even share legal guardianship.
Legal rights of non-biological guardians
In many cases, legal rights to a child are seen as the exclusive domain of biological parents or legal guardians. But the Children’s Act 38 of 2005 offers some flexibility; it recognises that a child’s wellbeing can be supported by a wider circle of individuals. Specifically, R.C. relied on two sections of the Children’s Act to argue his case:
- Section 23: This section allows a person who has an established relationship with a child to apply for rights to contact and care, even if they are not a biological parent.
- Section 24: This section allows someone to apply for joint guardianship of a child, even if they are not biologically related to the child.
R.C. argued that his relationship with B. entitled him to be involved in the child’s life, even though they were not biologically related. He had acted as a father figure throughout the child’s life to date, being involved in B.’s care and upbringing and forming a bond that was beneficial to the child.
The court’s decision
The court found that the relationship between R.C. and B. had been meaningful and valuable to the child’s development, and ending the relationship abruptly could be harmful to B. Beyond the welcome news for R.C., the court’s ruling was significant for several reasons. Most notably, it clarified that biologically unrelated individuals could seek co-guardianship or contact rights based on the strength of their relationship with a child, without needing to challenge the suitability of the biological parent or existing guardian. This is an important shift away from a commonly held belief, removing the need to argue that the biological parent is unfit or unable to care for their child. Instead, the court emphasised the importance of looking at each case on its own merits and focusing on the best interests of the child – the guiding principle of the Children’s Act.
What does this mean for modern families?
This ruling has important implications for family law in South Africa. It opens the door for non-biological caregivers, such as stepparents, close family friends, or others who have formed a strong bond with a child, to apply for legal rights of contact and guardianship without needing to prove the existing parent is unfit. This acknowledges the reality of modern family life, where parental roles are often shared among a range of people beyond biological parents.
The decision reinforces the importance of the best interests of the child in family law cases, which takes priority over rigid definitions of parenthood. When an adult with no biological relationship to a child plays an important role in their life, it may be in the child’s best interest to allow that relationship to continue, even if it means expanding the boundaries of the traditional definition of “family”.
This case is a milestone in family law because it broadens the legal understanding of who can be considered a parent or guardian. It recognises that loving relationships between adults and children can be formed outside of traditional biological or legal ties, and these relationships can be important to a child’s development and wellbeing.
Critically, by affirming that non-biological carers can apply for legal rights without needing to discredit the biological parent, the court has made it easier for children to benefit from the care and involvement of a wider range of supportive adults. Furthermore, it has removed an obstacle that may have prevented some carers from applying for contact. Proof of parental unsuitability is a brutal requirement which may be wholly unjust in many cases. This ruling offers reassurance to non-biological caregivers that their place in a child’s life is legally recognised and valued for its own sake.
Best interests of the child
Ultimately, the decision underscores the need to keep the focus of any legal proceedings involving children on what is best for the child. Modern families come in all shapes and sizes, and a legal framework that is sensitive to the changing society it serves must reflect that reality. This case provides a clear pathway to securing legal rights for anyone in a non-traditional parenting role who wants to remain in a child’s life after the breakdown of a relationship.
Seek professional legal advice
At Simon Dippenaar and Associates Inc., we are experts in family law. Based in the metros of Cape Town, Johannesburg and Durban, we have deep experience of working with clients in diverse relationship types. We respect the values of blended families and always put the child first. Call us on 086 099 5146 or email sdippenaar@sdlaw.co.za if you want to discuss your parenting queries in complete confidence.
Further reading:
- Life partnerships and the duty of support
- Child custody and guardianship in divorce
- Child guardianship explained
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.