Grandparents often play an important role in their grandchildren’s lives. In the majority of cases, time with the grandchildren is arranged directly with the parents without any problems. Sometimes, though, grandparents are either not allowed to spend time with the children or their time is restricted by the parents. These grandparents will come to us asking whether they can seek a court order allowing them time with their grandchildren.
Grandparents are allowed to apply to the court for access to their grandchildren. However, there is no automatic right to be awarded this. Access is the right of the child, not of third parties. In making a decision, the court will consider the best interests of the children. It is generally thought that having a relationship with their grandparents is in the children’s best interests, however, there is a conflict in the case law between recognizing the benefit of grandparent-grandchild contact and the principle of allowing parents to decide how to raise their children.
The leading principle is that parents generally have the right to determine who their children spend time with. If there is no evidence that the parents are behaving in a way that is not in accordance with the children’s best interests, the court will give significant weight to the parents’ decision. The onus will be on the grandparent to demonstrate to the court that the parents are acting unreasonably in denying access to the children. Some of the questions the court asks to determine whether the parents are being unreasonable are:
- Does a positive grandparent-grandchild relationship already exist (i.e. more than an occasional visit)?
- Has the parent’s decision imperiled that positive relationship?
- Has the parent acted arbitrarily?
A decision may be made to deny access if the grandparent persistently interferes in parenting decisions, refuses to comply with the parent’s rules regarding the children, or if such access poses a risk of harm to the child. Access may be granted if the benefit of it is in the children’s best interest. Particularly in situations in which the grandparents have resided with a grandchild or have been the regular daycare provider to the grandchildren, the grandparents can sometimes be seen as being in a similar role as step-parents; therefore, their chances of ongoing access are higher as the court is then preserving a parent-like connection.
The answer to whether a grandparent will be successful in making an access claim is complicated. If you are faced with this situation, please call us to discuss your options.
