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Grandparents’ rights during a divorce

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August 14, 2009

Grandparents are an important part of family life. They certainly were in mine, being my closest confidants as I grew up. I could tell them things as a maturing teenager I couldn’t tell my parents, and they gave me wise advice. I certainly benefited from the wisdom and love of my grandparents.

On family breakdown, the bulk of attention will, of course, focus upon the couple and their children, but grandparents can be profoundly affected. Left with feelings of grief and loss; they must also watch as their son’s or daughter’s life is torn apart.

Grandparents can be particularly concerned they may lose touch with their grandchildren. Can anything be done if those concerns turn into a real issue? From a purely practical perspective going to court isn’t the best option because your grandchildren could be drawn into another battle. The court will consider the situation from the child’s perspective – the child’s welfare is paramount.

If you do wish to apply for contact with a grandchild, you must first apply to the court for “leave” to be heard.  As the grandparent you do not have parental responsibility, so you are not automatically entitled to make a court application in relation to a child.  The court will consider the family circumstances and the role that the grandparent seeking leave has in that family.&nbnbsp; For example, the court may distinguish between a grandparent who frequently assists with childcare and a grandparent who lives out of the country and sees their grandchild once every few years.

Once leave is obtained, the court will consider the practicalities. It will take into account the children’s wishes and feelings, as well as the children’s established routine.  A court will prefer to make provision for the children to see grandparents within existing contact arrangements if possible, rather than carve the children’s time into smaller portions.  The court will also consider whether an order is needed or whether matters can be agreed.  The court will normally instruct CAFCASS (The Children and Family Court Advisory and Support Service) to become involved.  CAFCASS is able to interview all parties and speak to the children. Its role is to investigate, assist in discussions and report to the judge with recommendations.

A grandparent cannot obtain Parental Responsibility unless a residence order is made in their favour.  This means that a grandparent does not have an entitlement to any say in schooling or medical treatment for example.  Unless the children already live with you, the court is unlikely to make a residence order or a shared residence order save for circumstances where one or both of the parents are dead or deemed unsuitable to care for the children.

My advice for grandparents:

  • Try to discuss matters with the child’s parents at an early stage. Be scrupulous not to take sides. Make it clear all you want is a reasonable ongoing role in your grandchild’s life. Don’t play the blame game or get involved in the relationship breakdown.
  • Be realistic. Don’t forget that the children now have three households to move between – not just yours and theirs.
  • If discussions do not proceed smoothly or if you have concerns for your grandchildren, don’t let the situation escalate. Instead, seek legal advice and again try to settle quickly to avoid confrontation.
  • If necessary apply to the court. Should your application be linked to your son’s or daughter’s application for contact? The court is more willing to consider an application by a grandparent to assist with childcare within the context of the parents being primary carers, particularly if historically you have been the babysitter/carer of choice.
  • Don’t use an application as a way of getting back at your son or daughter-in-law. Don’t use your application as a way to reduce their time with their children and don’t use it as a weapon. The court will be highly critical of any person who appears to be abusing the process or using the law as a means to hurt the other parties.

If parents can resolve the issues themselves, it is more likely that grandparents’ hopes and wishes will be considered. If not, it is worth remembering that the court considers it best for children to know their extended family, so that they can understand their background and place in the world.


By Marilyn Stowe

With thanks for the assistance of the Stowe Family Law, Children Law Department


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