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grandparents and children

Grandparents’ Rights in Separation and Divorce

by Stephen Morgan

Whether they are providing childcare, financial support or a link to family history and culture, grandparents can play a vital role in the lives of their grandchildren and, as a result, develop special bonds with them. 

But in the event of a grandchild’s parent’s divorce, the elders may suddenly feel shut out of their grandchildren’s lives, with little to no recourse. Besides speaking with their adult child to plan regular visits with their grandchildren, grandparents have legal rights to independent contact with their grandchildren. 

Recent changes to the Divorce Act continue to enshrine the best interests of a child as the top priority of the legislation. In addition to considering a child’s physical, emotional and psychological safety, the Act also addresses the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life.

There has been a big push for grandparents’ rights over the years, particularly as divorce becomes more prevalent and multi-generational households more common. In the past — excluding unique circumstances — there was an assumption that grandparents would see their grandchildren through their adult child. But, over time, what we’ve seen is that more grandparents are looking for rights independent of their children.

Right to contact

The Act now states that “A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.” 

The rationale for making grandparents seek permission from the court is that a judge must consider all the relevant factors, including the strength of the child’s relationship with the applicant grandparent. Therefore, before making an order, the court analyzes the relationship and determines whether it is in the child’s best interest. 

Contact rights for grandparents may involve the court considering why a parent barred the grandparents from seeing a grandchild in the first place and whether their presence would negatively impact the child. No matter the situation, the judge will put the child’s best interest first and screen the request through this lens.

That said, courts will acknowledge the importance of a healthy grandparent-grandchild relationship. If a grandparent’s intentions are in good faith and the child’s best interests, the court will most likely approve the order. Although the wording in the Act has changed, all the same tests and rules are still in play.

It’s important to note that some judges have said it’s nearly impossible for grandparents to have built a strong bond with an infant or very young child, and have denied a contact order. 

Right to decision-making responsibility

While judges recognize the vital role grandparents can play, they also respect the inherent right of parents to determine the course of their child’s upbringing, provided that they are fit and competent. This is where things get stickier. 

Essentially, courts are reluctant to interfere with a parent’s decisions and should only do so when it’s in the child’s best interests. However, in some situations, grandparents may seek the court’s approval for sole decision-making responsibility and parenting time (what used to be referred to as custody and access).

Usually, a judge will grant sole decision-making responsibility to grandparents if they can prove that a child’s parents are unfit, or the youth is old enough to decide for themselves. This scenario most often occurs when both parents are abusive or have severe mental health or substance abuse issues. 

Denying contact

Parents can forbid grandparents from seeing their grandkids, and, in some cases, this can be a reasonable decision. 

If a parent can prove that having the child’s grandparents in their life would negatively impact their welfare, they can refuse a grandparent’s contact rights. If necessary, a court can completely bar a grandparent from contacting their grandkids, especially if it would endanger the child.

There are situations where it is generally deemed best to cut off contact with grandparents, including:

  • An irreparable personal relationship between the parent and grandparents that puts the grandchild in the middle of a high-conflict situation
  • When a grandparent is abusive or incapable of caring for the grandchild
  • When grandparents actively try to replace or undermine the parent’s role as the primary caregiver.

If a grandparent is deemed detrimental to a child’s welfare, a judge could make an order blocking all contact permanently. That said, parents cannot arbitrarily cut their children off from their grandparents over a disagreement if the dispute has no bearing on the child’s wellbeing. 

Legislation regarding grandparents’ rights to have contact with grandchildren is trying to strike the right balance between the best interests of the child — as determined by way of an application and subject to the permission of the court — and not promoting an automatic right of contact to all grandparent, regardless of the potential impact on the child’s life.

The best interests of the child test continues to govern. Still, the recent changes to the Divorce Act place continued emphasis on the need for a strong relationship between grandparents and grandchildren. 

If you are a grandparent seeking contact with a grandchild and want to discuss your options, give us a call at Morgan and Phillips LLP.

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by Stephen Morgan

Stephen Morgan practices exclusively in family law and is highly skilled and experienced in litigation. He aims to guide clients through a difficult and stressful time in their lives with understanding, support, and practical advice.