Family relationships can be complicated, especially when those relationships cross generations. As older adults often have adult children of their own, there may be issues involving grandchildren. Modern families take on a variety of forms and, in many cases, grandparents play a significant role in their grandchildren’s lives.
In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them. [The parents, not the grandparent,] are responsible for the welfare of the children. They alone have this legal duty. Esther, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children.
- Chapman v Chapman Ontario CA
Factors such as divorce, remarriage and blended families may all impact the grandparent-grandchild relationship. There may be disputes about how the grandchildren are being raised or how and when visits take place. Disagreements such as these are common and can sometimes be resolved like any other family dispute. When the parents of a grandchild separate or divorce, or where there are issues of neglect or abuse, resolving the conflict can be much more complicated.
Sometimes grandchildren’s visits to grandparents stop when their parents separate or divorce. Sometimes grandparents want more control over the way their grandchildren are being raised. In some cases, if the parties are unable to resolve their disagreements, they turn to the courts. In the event that the courts become involved, the rights of the children, their parents and the grandparents must all be balanced.
When it comes to deciding matters concerning children, the courts will always focus on the best interests of the child. While grandparents in Saskatchewan do not have any specified right to custody or access of their grandchildren, either can be granted to someone other than the parent of a child in some circumstances.
If a court is satisfied that a grandparent has a sufficient interest in a grandchild’s life, the court can make a custody or access order in favour of a grandparent provided that it would be in the best interest of the grandchild.
The court will look at the relationship the grandchild has with various people in their life, the character of the child, their needs and wishes, as well as the ability of the grandparent to care for the grandchild.
It is important to note that, generally speaking, the parents of a child have a fairly broad legal right to determine what is best for their own children. Sometimes courts are reluctant to interfere with these rights by making an access order in favour of a grandparent. Instead, the court might simply indicate that the parents of a child should arrange for access to grandparents during the time that the child is in their charge, if they so desire. Grandparents seeking an access order may need to convince a court why such access – over a parent’s objections – would be in the child’s best interest. If a grandparent is seeking custody of a grandchild they would likely have to establish that the child is being abused, neglected or otherwise at risk.
Regardless of how a court resolves a disagreement in this area, the bottom line is deciding what is best for the child. The feelings various people have for a child will not be as important to the court as the effect that various living arrangements would have on the physical, emotional and spiritual wellbeing of that particular child.
PLEA can provide you with information to help you understand many legal matters you, a family member or friend may be facing.