More often than not, grandparents end up being disregarded when their children separate or divorce. As a result, the grandparents see their grandchildren less frequently.
At what point do grandparents have legal rights when it comes to spending time with their grandchildren?
Are there circumstances in which grandparents can obtain custody of their grandchildren?
Here’s what you need to know about your legal rights as a grandparent in British Columbia.
What Visitation Rights do Grandparents Have?
Provided that it’s in the best interests of the children, the courts will usually support the relationship between grandparents and their grandchildren.
If your grandchildren’s parents are not making it possible to establish an agreement on when you can spend time with them, you can apply for a court order that will allow you visitation rights.
In the Family Law Act, any person that is not the legal guardian of the child, including grandparents, can apply to the court to be granted ‘contact with the child’.
If you are seeking to apply for an order to be awarded visitation rights and ‘contact’ with your grandchildren, you should take note of the following considerations:
- your grandchildren’s best interests will remain of paramount importance to the court;
- no presumption exists that suggests it is always in the best interests for grandparents to have contact with their grandchildren; and
- it is the grandparent’s responsibility to prove that it is in the grandchildren’s best interests to be able to spend time with their grandparents.
What Are Your Grandchild’s Best Interests?
To determine whether or not it’s in your grandchild’s best interests to have ‘contact’ with you, the court will consider various factors including, but not limited to, the following:
- what kind of relationship exists between you and your grandchild? Is there history and evidence of a positive relationship?
- why did the parents refuse access to your grandchildren? Did you act unreasonably in any way?
- are you making any extreme or illogical requests regarding contact with your grandchildren?
Should you have a good relationship with your grandchild or grandchildren, the court will likely find it is in their best interests to continue that relationship.
Can Grandparents Obtain Guardianship Rights?
Should the following circumstances arise, grandparents are entitled to apply to be the legal guardians of their grandchildren:
- One or both of the biological parents have passed away.
- One or both of the biological parents are involved with drugs.
- One or both of the biological parents have no contact with the child.
- One or both of the biological parents are not fit to care for the children.
While the grandparents are entitled to apply for legal guardianship of their grandchildren in one or more of the above circumstances, there is no guarantee that the court will grant them the order.
You can only become your grandchild’s legal guardian through an order obtained by the court. You can’t become a guardian by way of an agreement, even with the child/children’s parents’ approval.
Application Steps to Become Your Grandchild’s Legal Guardian
Step 1: Pursuant tosection 51 of the Family Law Act, you can file your application for guardianship in the Provincial Court or the Supreme Court.
Step 2: You must include an affidavit specifying the following information in your application:
- the nature of the relationship between you and your grandchild;
- how you intend on taking care of your grandchild; and
- if applicable, any evidence that proves there is a history of family violence or neglect where your grandchild is currently living.
Step 3: You will be required to submit a criminal record check, a Protection Order Registry record check, and a Ministry of Children and Family Development record check.
Step 4: You will need to send notice of your application to the child’s parents or the person who is currently caring for your grandchild.
Key Takeaways
Family law cases are often sensitive and complex. Before making any decisions that may result in an uncomfortable legal battle between you and your grandchild’s parents, first consider trying to reach an amicable agreement.
If for some reason you are not able to reach an agreement, you may wish to seek a court order granting you visitation rights with your grandchildren. Keep in mind that their best interests remain the most significant focal point in the court’s decision on whether to grant you the order or not.
Similarly, it is possible for grandparents to apply to the court to be granted full guardianship of their grandchild/grandchildren. The courts will not consider these applications lightly.
Guardianship is generally only awarded in circumstances where the grandchild/grandchildren may not be receiving adequate care from their current guardians.
If you have any questions regarding your legal rights as a grandparent, get in touch with us today!
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