Pretoria - The absence of a biological link is not a bar for a father figure to approach a court to apply for co-guardianship over the child.
The best interests of the child should always prevail, the Gauteng High Court, Johannesburg, has said.
The court upheld the appeal of a man who wanted joint guardianship over his now estranged girlfriend’s 6-year-old son. He moved in with the woman when the child was only 1-year-old and they lived together as a family for two years, before they broke up.
The man, in his early fifties, said he had formed a bond with the child and would like to have access to the boy.
His ultimate goal is to obtain joint custody of the boy, but agreed that a psychologist should first assess the situation and issue a report to the court regarding what is in the best interests of the child.
To make matters more complex, the child has an older brother, aged 13, and it is said that there is sibling rivalry between the children due to the applicant’s bond with the younger child.
The older boy, unlike his younger sibling, does on occasion have contact with his biological father.
The mother at first agreed to contact between her youngest son and the applicant, but later withdrew all contact.
She claimed her former partner – the applicant – wanted to “hijack” her family as the childless man always wanted to have children. The court earlier turned down his application to have contact with the child, as it found that as a non-biological father, he had no legal standing in launching the application.
It also found at the time that it was not in the best interests of the child to see the applicant. The man, however, appealed against this order.
Judge Ingrid Opperman ruled in favour of the man and said a court can, as upper guardian of all children, and in the best interests of a child, grant joint guardianship without finding that the existing guardian – the mother – is unsuitable.
She did grant the man contact with the child, but it was ordered that a psychologist assess both siblings to determine the way forward.
The issue of co-guardianship will thus only be determined at a later stage.
The parties met on the social media platform Tinder, a dating site, where people invite others to contact them, when the mother was pregnant with the child in question. She did not disclose details of the biological father to the court.
The mother, 31, did not immediately disclose her pregnancy to the man. It only emerged after they had started a relationship.
In December 2018, when the child was about a year old, the parties moved in together. Over the next two years the man and the youngest child formed a strong bond – similar to that of a father and son.
After the couple separated, they agreed on an informal arrangement in terms of which the man and the child had regular contact. It lasted nine months until the mother revoked contact abruptly.
The mother told the court the man had overridden her rights to make decisions regarding the safety of the child by taking him on a motorbike, on a speed boat and for a swimming assessment.
He also showered the child with gifts and had arranged a birthday party for him, which drove a wedge between the child and his older brother, she said – “something sinister was afoot”.
Judge Opperman said the court that initially turned down the man’s request for contact ought to have found that on the face of it, it was in the best interests of the child to have contact with his psychological father (the applicant).
The court was not unsympathetic towards the concerns of the mother, especially how the man’s contact with the younger child would affect her older child and her own own relationship with the younger child.
But, the judge said, cutting contact was not the solution.
Pretoria News