Grandparents' Rights During a Divorce
Grandparents can play an integral role in a child's life, providing love, support, and physical care. As a result, the close emotional bonds they form with their grandchildren can be similar to those between a parent and child. With over 40,000 divorces in Canada each year, grandparents can provide valuable emotional support and stability for children during a family transition.
However, during the divorce process, grandparents are sometimes denied access to their grandchildren by one or both parents, typically due to a family dispute. Alberta's Family Law Act does not give grandparents the explicit right to have contact with their grandchildren. However, there might be options available for grandparents who wish to preserve their connections with grandchildren after divorce amidst disputes about access.
Depending on the circumstances, grandparents may apply for a contact order. If granted, a contact order can outline rules for visitation schedules and acceptable methods of communication. An Edmonton divorce lawyer may be able to help you understand your options and assist you with the steps necessary to apply for a contact order.
Applying For a Contact Order
Grandparents can apply directly for a contact order with a grandchild if their situation meets the following criteria:
- The guardians are the parents of the children
- The guardians are living separate and apart, or one of the guardians has died
- The grandparent's regular contact with the child has been interrupted by the separation or death
The court's primary objective is to ensure that enforcing grandparental access is in the child's best interests. They will consider why the parents have denied access and whether the interruption of contact negatively affects the grandchild. They will also consider the potential for conflict between the grandparents and the parents should contact be resumed.
The court will also consider:
- The history of grandparental care and the strength of the child's existing relationship with the applicant
- The child's cultural/language/religious upbringing and heritage and the benefit to the child of maintaining a relationship with the applicant
- The child's wishes (especially if over 12 years of age)
- Any history of family violence or civil or criminal proceedings relevant to the child's safety and well being
- And possibly more
If Both Parents Deny Access
If both parents deny access to the grandchildren, the courts will generally assume the parents know what is best for their children and defer to their wishes. It can be challenging for grandparents to gain access in these circumstances.
However, even in these scenarios, grandparents may be allowed to ask the court's permission to apply for a contact order. This request for permission is a preliminary step to making an application for the contact order itself.
Grandparents will need to demonstrate that interrupting their relationship with their grandchild is unreasonable and that resuming the relationship will be in the grandchild's best interests. Then, if the court grants permission, they may proceed with the contact order application process.
The court will consider the child's best interests when deciding if an application for a contact order may proceed. In addition, the court will assess the significance of the relationship and whether all parties can resolve their issues out of court through mediated discussions.
If the court denies the application for permission, grandparents may be able to appeal the decision within a strict limitation period. An Edmonton divorce lawyer may be able to help you determine whether you would benefit from requesting permission to apply for a contact order and could also help you navigate the necessary steps should you choose to proceed.
If grandparents have serious concerns about their grandchildren's health and safety within the parents' households, they may wish to consider an application for kinship care or guardianship. These agreements might allow the children to live with their grandparents. To learn more about applying for kinship care or guardianship, schedule a consultation with Verhaeghe family lawyers.
Contact Verhaeghe Family Lawyers Today
If you have been denied access to your grandchildren and wish to apply for a contact order, Verhaeghe family lawyers may be able to help. Contact us today for more information and to schedule a consultation.
* Please note that the information in this article is not intended as legal advice but rather as a general overview of family law. If you are seeking legal advice, please consult with a lawyer.