Better understand grandparents’ rights
Grandparents occupy an essential place in the lives and hearts of children. They are the witnesses of the passage of successive generations. They embody the memory and history of the family. Their presence contributes even more to the development of the children. They provide them with additional emotional security. However, conflicts between adults affect the relationship and the good understanding between grandparents and their grandchildren. Disagreements lead to a withdrawal of the grandparents’ rights: a ban on visiting and talking to the children. How do we deal with this situation? Do grandparents have a say or should they submit to the parental decision?
What are my rights to see my grandchild?
Canadian law allows children to bond with their grandparents. So what are their rights? Are there any obligations?
The right of access to grandchildren
Parents cannot block the relationship between ancestors and their grandchildren. Grandparents have the right of access at all times. This prerogative includes the rights of physical contact and contact at a distance (by e-mail, by telephone…).
Grandparents’ right of access applies to descendants of all ages, from infants to adults. Whether they are biological descendants or adopted children, children retain this privilege.
Grandparents also have the right to visit grandchildren. They also have the right to house the grandchildren for a limited time.
The right to participate in the education of the children
Grandparents contribute to the education of their children. They help the parents. They provide advice on schooling. They offer extra classes or extracurricular activities. Their participation, combined with parental efforts, leads to the physical, intellectual and spiritual development of the children.
However, parents remain the sole decision-makers in the intellectual and spiritual lives of their children. Grandparents cannot become substitute parents. That is why they cannot choose where their children go to school or enroll them in any activities without the parents’ knowledge.
Moreover, this attempt to substitute for the parents is always a source of conflict that can lead to a deprivation of their rights.
What are the limits of grandparents’ rights?
Grandparents can lose their rights at any time for several reasons:
- A refusal by the children to see the grandparents again ;
- A declaration of unfitness to care for the children;
- A conflict between parents and grandparents that affects the children;
- A toxic relationship between grandparents and grandchildren.
Parents can request the withdrawal of grandparents’ rights, but the final decision rests with the family court judge. Depending on the context, the judge may decide to grant visitation rights under certain conditions or order a total withdrawal of their rights.
What about the duties of grandparents?
Based on family solidarity, grandparents must provide for their grandchildren. This obligation applies not only while they are living in their residence, but also in the event of a lack of support. If necessary, they pay support on behalf of the grandchildren.
In addition, the obligation to provide support works both ways. Grandchildren also have a duty to provide the necessary support to their grandparents in the event of incapacity. In the event of death, grandchildren are responsible for funeral expenses if the assets of the estate cannot cover these expenses.
Grandparents also have a duty to protect their grandchildren from their parents. This duty comes into effect if their actions or behaviour are detrimental to the safety, health and development of the children.
Priority to the children
In theevent of conflict between the parents or in the event of a divorce, the grandparents’ rights of access remain in effect. However, they should not take this privilege for granted. The family court judge takes precedence over the interests of the children. The magistrate of the judicial court may initiate a social investigation if he or she observes any disturbance within the family. The judge also takes thechildren’s views into account before making a decision.
If there is tension between the parents and grandparents, the judge will try to determine the cause. The judge will encourage reconciliation between the parents and grandparents before making a final decision. It is advisable to seek legal advice in this area.
When can grandparents have custody?
Grandparents replace parents, but under what circumstances?
Causes for the withdrawal of parental authority
Differences of opinion on the education of the children poison the relationship between the parents and the grandparents. In all cases, each parent must respect the other’s choice, without counting the fact that the parents always have the last word.
However, a request for custody by the grandparents is enough to trigger the withdrawal ofparental authority. Habits and behaviours that are harmful to the children’s development, that jeopardize their safety or that make them unfit to raise and educate them justify the request. The request must be accompanied by irrefutable evidence. If the situation is confirmed, the judge grants full powers to the grandparents.
Procedures for regaining control
In a climate of discord, the intervention of a judge is always indispensable. He will receive the dispute and deal with the case. His decision takes into account the well-being of the children. If necessary, he will request the intervention of a family mediator.
The judge’s decision includes two hypotheses. On the one hand, the judge grants the parents temporary and modifiable visiting rights or accommodation rights . On the other hand, he can keep them away from the children for a certain period of time and reassign custody to the grandparents.
The parents can apply for restitution after confirming their ability to raise and educate their offspring in a suitable manner.
How do you reallocate grandparents’ access rights?
You can find advice online in the grandparents’ rights forums. However, expert advice is the best solution. Seek the help of an attorney to defend your rights as a grandparent.
Reasons for the removal of grandparent visitation rights
Toxicity of the relationship is the main reason for denying grandparents access. Excessive demands, manipulation, and attempts to gain the children’s sympathy through gifts are all signs of toxic grandparent behavior.
The judge may deny access to the children provided there is a serious reason:
- a harmful relationship between grandparents and parents detrimental to the welfare of the children;
- a bad influence of the grandparents;
- an attempt to become surrogate parents;
- constant encroachment on the rights of the parents;
- a refusal by the children to maintain the bond and contact with the grandparents;
- neglect of parental authority.
The parents provide the court with concrete evidence to support their claim. The final decision of the family court judge will depend on this evidence.
Becoming exemplary grandparents again
Children deprived of their ascendants cannot hope to develop serenely. Grandparents have the duty to set an example and to behave properly in the presence of their grandchildren. They devote more time to them. They invest in their grandchildren and give their all to their education.
Exemplary grandparents organize entertaining activities: trips to the countryside, walks in parks, outings to museums, theaters, movies… They invite them to take a break from their daily routine for a few hours to exercise, change their minds and make new discoveries.
They also plan activities to do together: gardening, knitting, pottery, cooking… These good practices boost children’s development and create an intimate moment for sharing and confidences.
Occasional gifts are also welcome.
Trying to reach an amicable agreement
You can seek restitution of your grandparenting rights at any time. Before you begin proceedings, consider what you need: telephone contact, video conferencing, regular visitation rights or accommodation for your grandchildren.
Start the proceedings with an amicable arrangement. Restore dialogue with the parents, make compromises and concessions and try to find common ground.
If necessary, seek the intervention of a mediator. A mediator is a qualified, trusted third party who attends all meetings. The mediator has psychological and legal expertise. They are also bound by professional secrecy and must be impartial and neutral in their judgement. The intervention is invoiced according to the grandparents’ income.
Family mediation takes place in 3 stages :
- a first interview ;
- an exposition of the grandparents’ demands;
- an intervention of the judge to ratify the agreements.
A preliminary information interview is necessary before the process can begin.
Ask for the help of a lawyer
If the first approach is unsuccessful, the grandparents seek the help of a lawyer to obtain their rights. Generally, there are two reasons for this. Grandparents seek the services of an expert to reestablish the ties that have been lost after a long period of absence. They also use his services to regain their rights after an educational failure. The objective of the operation is to remedy the deficiencies and regain the children’s trust.
The role of the lawyer is to assist them in the procedures to seize the family court. The legal expert will plead on their behalf and will bring the grandparents’ wishes to court. As such, he or she will have to provide evidence of their ability to raise and educate their grandchildren according to the standards.
Taking the case to court
If the dialogue fails, take the matter to court. The judge will then treat the case with great bias. In addition to the interests of the children, their possible opinion will influence his or her initiative.
On the grandparents’ side, they will have to clear the charges and justify their claim. There are two possible outcomes: the judge will either grant or deny access. In the first case, the judge will set the terms of the visit (hours of visit, place of visit or possibly a period of accommodation). It should be noted that it is customary for the judge to grant daily access rights to grandparents in the event of the loss of a parent.
Otherwise, he can withdraw their rights. The preservation of the child’s emotional balance and the maintenance of a healthy relationship between parents and children are the reasons for this decision.
The judge may also establish progressive access rights, which he will evaluate and reconsider over time. The judge may also limit the access to a simple correspondence and authorize only long-distance exchanges for the good of the children.
What are the sanctions in case of non-compliance?
The parties involved (parents and grandparents) must comply with the new court orders. In case of failure to comply, the person in charge will receive a verbal warning. If he persists in going against the judge’s decision, the applicant goes to the nearest Police Station or Gendarmerie. He can also go to the public prosecutor to file a complaint for failure to comply with the judge’s decision.
The penalty is a fine of approximately 20,500 Canadian dollars. The plaintiff must attach to the complaint all the elements that could confirm the violation: a screenshot, a letter, an e-mail or a photo. They must also include a copy of the judgment.
Grandparents, if they feel their rights have been violated, can also file a complaint. They file a copy of the court decision as evidence and denounce the offences as well as the culprits.
