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LAWYER: Uyapo Ndadi

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Adoptive father wins child custody against martenal grandmother

•The adoptive father had been taking care of the child for 10 years

A bitter child custody battle between a granny and an adoptive father came to an end this week as the magistrate ruled in favour of the latter.

The child custody case between the child’s maternal grandmother, Bonthodile Dinao, and the adoptive father Tebogo Monnane, began soon after the death of the child’s mother in July, 2021.

In her founding affidavit, the grandmother told the court that she contacted the Department of Social welfare and community development on September 2, 2021, because Monnane was refusing to hand her grandchild over to be registered for social welfare.

According to the grandmother the reason for wanting custody of the child was that Monnane did not legally adopt the child.

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“After the funeral, she [grandmother) requested that she be given her grandchild because she was not adopted legally and that his biological father had once showed up when the deceased and her husband were preparing for marriage but later disappeared,” reads her affidavit.

According to the grandmother, the adoptive father refused to hand over documents needed to transfer the child to another school as well as documents needed to register the child for the orphans care programme with the Kgalagadi District council.

According to social enquiry report dated September, 15th, social workers assessment found that the step father had been staying with the step child since the day he married the child’s mother.

“Tebogo Monname did not adopt the child. There is no legal document which makes Monname a custodian of the child,” the report reads.

However, Monname argued that he had adopted the child in accordance with the customary law.

“When I met my wife who is now deceased, she indicated that the biological father of the child long abandoned the child and he is not involved in the life and care of the child. They separated when she was pregnant. I then assumed the father figure role of the child when the child was one year old and nurtured him and still do to date. He knows me as his father,” Monname told the court.

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According to Monname when he eventually married the child’s mother he indicated he would adopt the child. He said that his uncle who was leading the delegation communicated this with his wife’s family and they agreed.

“In fact it was raised by my wife’s family to ask whether ‘ ke e gapa le namane kana jang’ meaning whether I am also taking the child into our marriage through adoption,” the step father further told the court.

He further asserted that after the death of his wife, a few months back he was shocked at the behavior of his mother in law whom he had also been taking care of.

“My child cannot be enrolled in an orphan care programme when I am still alive and able to provide for him. The conduct of the applicant (the grandmother) is not in the best interest of the child as it destabilizes the child by putting his care in the hands of government,” he further argued.

During the course of the case the adoptive father’s lawyer Uyapo Ndadi argued that customary law is recognized by law and that section 16 of the adoption of children’s act is instructive.

“Since the adoption, the respondent has implemented the agreement to adopt. He has been the father figure and provider to the child. He has also built a good and healthy relationship with his adopted son. We submit that the conduct by the applicant to suddenly uproot the child from his normal environment deserves condemnation,” Ndadi argued.

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In the end the Magistrate ruled in favour of the adoptive father.

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