In a society in which extended family units abound, many of which are headed by grandparents, it may surprise you to know that there are no statutes which give grandparents the right to even seek access to their grandchildren.

The absence of appropriate 'grandparent laws' becomes obvious when parents separate, divorce or one parent dies. At those times, the grandparents are left clinging to the hope that the parent who gets custody of the child will be amenable to allowing visits .

The Law

Under the Children (Custody and Guardianship) Act, a child's mother and father have equal rights to apply for custody. But it makes absolutely no mention of grandparents. Therefore, we know that the benefits do not exist.

However, the burdens do. Under the Maintenance Act 2005, grandparents may be called upon to maintain their grandchildren. In particular, section eight of that act states that every parent is obliged to maintain unmarried minor children or such adult children who are in need of maintenance by reason of physical or mental infirmity. It goes on to provide for this obligation to shift to grandparents where the parents fail to do so due to death or physical or mental infirmity.

It should be noted that there is reciprocity in this regard, because grandchildren may also be liable to maintain their grandparents if the children of those grandparents cannot fulfil this obligation due to death or physical or mental infirmity.

Where grandparents have been caregivers and financial providers to their grandchildren, shouldn't there be some legal basis for them to even petition the court for visitation rights?

Other jurisdictions

It is clear that we need to reconsider this aspect of our laws, because all 50 states in America, enacted laws to allow grandparents visitation rights. Some of these laws date back to the 1970s. While it is true that some of those enactment's are still quite restrictive, and the courts will be cautious in enforcing grandparent visitations where they are contrary to the parent's wishes, we need to at least consider whether our laws need to reflect the reality that many grandparents are primary caregivers.

If we continue to assert that our family laws view the welfare of the child as the paramount consideration, why is there no provision for grandparents to apply for access to their grandchildren?

Sherry-Ann McGregor is partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.