What are grandparents rights when it comes to spending time with their grandchildren? When a couple with children divorce or split up, it often affects the entire extended family. Do members of the extended family, particularly grandparents, have any legal rights to continue to see the children?
Grandparents Rights in Ontario
In Ontario, grandparents rights have been on the agenda for some years. Another attempt is being made to change the province’s Children’s Law Reform Act to ensure they get access to their grandchildren when parents separate or divorce. An estimated 75,000 Ontario grandparents have been denied access to about 112,000 children, which they say causes needless alienation, pain and suffering.
Wanda Davies of Toronto said using children as pawns in divorces by denying them access to their grandparents and isolating them from family members amounts to psychological and emotional abuse. “The pain inflicted on our grandchildren and grandparents is beyond description,” she said. “It’s a living bereavement.”
Grandparents say they can provide guidance and security that is sometimes lacking at home, but the courts refuse to give them any special consideration in custody cases, even when the parents have died or given up their rights.
Grandparents Rights Limited in Pennsylvania
In the United States, grandparents rights vary from state to state. On the whole, it is accepted that grandparents have the right to seek visitation, but not the right to seek custody except in special circumstances. A major Pennsylvania Supreme Court decision has tipped the scales against grandparents who attempt to seek custody of their grandchildren during a marital separation.In the recently decided case, D.P. and B.P. v. G.J.P and A.P., the Pennsylvania Supreme Court held that a statutory provision, Section 5325, which gives grandparents standing to seek custody, based solely on the separation of the parents, was unconstitutional. They reasoned that this law improperly presumed the parents’ lack of fitness due solely to their separation.
In the case, the parents separated after six years of marriage but never initiated formal divorce or custody proceedings. The parents were able to agree to informal custody terms on their own. Both also agreed that they did not want their three children to have contact with their paternal grandparents.
The paternal grandparents sued for partial custody but lost.
The court first noted that grandparents, barring special circumstances, do not typically have the right to initiate a law suit, regarding the custody of their grandchildren. The court then ruled that, contrary to existing statutory language, grandparents do not have standing in custody actions simply because two parents are separated and have been for more than six months.
A parent cannot be presumed unfit and in need of custody transfer just because they are separated, the court concluded. Justices Wecht and Baer said the court should not treat divorced people differently from non-divorced people.
The essence of the Supreme Court’s opinion is that the law presumes parents are fit and are making decisions in their children’s best interests, therefore it is not appropriate for the state to intervene in parental decisions without cause.
Grandparents Rights in Australia
In Australia, grandparents rights are set out in the law. The Family Law Act acknowledges the importance of children having a relationship with their grandparents. Grandparents are specifically mentioned in the Family Law Act as being able to apply to a court for orders to do with their grandchildren. However it is important to be aware that this does not mean that grandparents (or indeed parents) have an automatic right to have contact with the children.
The Family Law Act makes it clear that the ‘best interests of the child’ are the main considerations when it comes to decisions about parenting. The focus of the Family Law Act is on the rights of children to know and be cared for by both parents and other people significant to their care, welfare and development, such as grandparents and other relatives.
The Court is required to consider when determining what is in the best interests of the child the right of the child to spend time with their grandparents.
In addition, when making certain orders concerning what is in the child’s best interests the court must consider:
- Other persons including any grandparent.
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living.
- The capacity of any other person, including any grandparent, to provide for the needs of the child, including emotional and intellectual needs.
Do Grandparents Need To Go To Court?
It is not always necessary to go to the Family Court to gain access to see and have a relationship with your grandchildren.
The Family Law Act promotes the resolution of family law disputes by mediation which is where everyone sits down with a qualified mediator to attempt to resolve any conflict surrounding what is in the best interests of the child.
The result of this early dispute resolution process often results in the parties reaching an agreement about grandparents spending time with their grandchildren. This agreement can be included in a Parenting Plan setting out where the child lives and when the child communicates or spends time with their parents and grandparents.
In the event that no agreement is reached at mediation than it may be necessary to make an application to the Family Court seeking an order on when you can communicate or spend time with your grandchildren.
Circumstances in which Grandparents Have Rights
The most common scenarios in which grandparents may seek to enforce their rights include:
Where the relationship with your own child has broken down (but the parents’ relationship remains intact)
Where the parents have separated and one parent refuses to let you have anything to do with your grandchildren
Where you have been the primary carer for your grandchildren and the children’s parent returns to take the children back into their care.
If you are a parent or a grandparent and have had access to your children denied, you may need to apply to the court. A Parenting Arrangement may be agreed upon by all parties during the process of mediation, or you may have to apply for Consent Orders, which are set by the court and legally binding. We always recommend that you seek legal advice before commencing any action, so that you are fully aware of the scope of the relevant law.
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